S. Hrg. 98-503
COMPREHENSIVE CRIME CONTROL ACT OF 1983
HEARINGS
BEFORE THE
SUBCOMMITTEE ON CRIMINAL LAW
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-EIGHTH CONGRESS
FIRST SESSION
ON
S. 829
TO AMEND THE FEDERAL CRIMINAL CODE REGARDING: (1) BAIL- (2)
SENTENCING; (3) THE EXCLUSIONARY RULE; (4) FORFEITURE- (5) THE
INSANITY DEFENSE; (6) HABEAS CORPUS; (7) DRUG-RELATED OF-
FENSES; (8) JUSTICE ASSISTANCE; (9) CAPITAL PUNISHMENT- (10) SUR-
PLUS FEDERAL PROPERTY USED IN CORRECTIONS; (11) CURRENCY
AND OTHER CRIMINAL OFFENSES
MAY 4, 11, 18, 19, AND 23, 1983
Serial No. J-98-37
Printed for the use of the Committee on the Judiciary
S. Hrc. 9H-503
COMPREHENSIVE CRIME CONTROL ACT OF 1983
HEARINGS
BEFORE THE
SUBCOMMITTEE ON CRIMINAL LAW
OF THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-EIGHTH CONGRESS
FIRST SESSION
ON
S. 829
TO AMEND THE FEDERAL CRIMINAL CODE REGARDING: (1) BAIL; (2)
SENTENCING; (3) THE EXCLUSIONARY RULE; (4) FORFEITURE; (5) THE
INSANITY DEFENSE; (6) HABEAS CORPUS; (7) DRUG-RELATED OF-
FENSES; (8) JUSTICE ASSISTANCE; (9) CAPITAL PUNISHMENT; (10) SUR-
PLUS FEDERAL PROPERTY USED IN CORRECTIONS; (11) CURRENCY
AND OTHER CRIMINAL OFFENSES
MAY 4, 11, 18, 19, AND 23, 1983
Serial No. J-98-37
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
25-694 O WASHINGTON : 1984
COMMITTEE ON THE JUDICIARY
STROM THURMOND, South Carolina, Chairman
CHARLES McC. MATHIAS, Jr., Maryland JOSEPH R. BIDEN, Jr., Delaware
PAUL LAXALT, Nevada EDWARD M. KENNEDY, Massachusetts
ORRIN G. HATCH, Utah ROBERT C. BYRD, West Virginia
ROBERT DOLE, Kansas HOWARD M. METZENBAUM, Ohio
ALAN K. SIMPSON, Wyoming DENNIS DeCONCINI, Arizona
JOHN P. EAST, North Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa MAX BAUCUS, Montana
JEREMIAH DENTON, Alabama HOWELL HEFLIN, Alabama
ARLEN SPECTER, Pennsylvania
VI^fTON DeVane Lide, Chief Counsel and Staff Director
Deborah K. Owen, General Counsel
Shirley J. Fanning, Chief Clerk
Mark H. Gitenstein, Minority Chief Counsel
Subcommittee on Criminal Law
PAUL LAXALT, Nevada, Chairman
STROM THURMOND, South Carolina JOSEPH R. BIDEN, Jr., Delaware
ARLEN SPECTER, Pennsylvania MAX BAUCUS, Montana
ROBERT DOLE, Kansas
John F. Nash, Jr. Chief Counsel and Staff Director
WiLUAM Miller, General Counsel
Beverly McKittrick, Majority Counsel
Frederick Nelson, Counsel
(II)
CONTENTS
STATEMENTS OF MEMBERS
Page
Laxalt. Hon. Paul, a U.S. Senator from the State of Nevada, chairman,
Subcommittee on Criminal Law 1, 221
Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina,
chairman. Committee on the Judiciary 2, 971
Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts,.... 3, 969
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delaware 4, 222
Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania, chair-
man. Subcommittee on Juvenile Justice 541
CHRONOLOGICAL LIST OF WITNESSES
Wednesday, May 4, 1983
Smith, Hon. William French, Attorney General of the United States, U.S.
Department of Justice 5
Giuliani, Rudolph, Associate Attorney General, Lowell Jensen, Assistant At-
torney General, Department of Justice; and John M. Walker, Jr., Assistant
Secretary, Enforcement and Operations, Department of the Treasury 12
Wednesday, May 11, 1983
Robb, Hon. Charles S., Governor, Commonwealth of Virginia, on behalf of
National Governors' Association, accompanied by Richard N. Harris, direc-
tor, Department of Criminal Justice Services, Commonwealth of Virginia;
and Nolan E. Jones, staff director. Committee on Criminal Justice and
Public Protection, National Governors' Association 223
Zimmerman, Hon LeRoy S., attorney general, on behalf of National Associ-
ation of Attorneys General, accompanied by Mrs. Mclntyre, deputy attor-
ney general Commonwealth of Pennsylvania 270
Miller, Edwin L. Jr., San Diego County district attorney, president elect,
National District Attorneys Association 290
Wednesday, May 18, 1983
Symms, Hon. Steven, a U.S. Senator from the State of Idaho, accompanied by
Larry Pratt, executive director. Gun Owners of America and John M.
Snyder, director of publications and public affairs. Citizens Committee for
the Right to Keep and Bear Arms 321
Shattuck, John, national legislative director; David E. Landau, legislative
counsel, American Civil Liberties Union and Prof. Leon Friedman, Profes-
sor of law, Hofstra Law School 335
Marek, Edward F., public defender, Cleveland, Ohio, northern district of Ohio
and Richard J. Wilson, director. Defender Division, National Legal Aid and
Defenders Association 462
Thursday, May 19, 1983
joint hearing — subcommittees on juvenile justice and criminal law
Knapp, James I., Deputy Assistant Attorney General, accompanied by Roger
Pauley and Molly Warlow, Office of Legislation, Criminal Division, U.S.
Department of Justice 542
(III)
IV
Page
Tjoflat, Hon. Gerald Bard, U.S. Circuit Judge, 11th Circuit Court of Appeals,
and Chairman, Committee on the Administration of the Probation System,
Judicial Conference of the United States 638
Greenhalgh, Prof. William W., Georgetown University Law Center, chairman,
Section on Criminal Justice, accompanied by Prof. B. James George, Jr.,
New York Law School, chairman, Standing Committee on Association
Standards for Criminal Justice, and Timothy B. Atkeson, Esq., chairman,
ad hoc Committee on Federal Criminal Code of Corporate Banking and
Business Law Section, American Bar Association 667
Reader, Hon. W. Donald, Senior Judge, Family Court, Stark County, Ohio,
chairman, Legislative and Government Regulations Committee, National
Council of Juvenile and Family Court Judges , 816
Roth, Prof. Loren H., codirector, law and psychiatry program. Department of
Psychiatry, University of Pittsburgh 828
Monday, May 23, 1983
Panel consisting of: Mark Moseley, Virginia; Roberta Roper, Upper Marlboro,
Md.; Margaret Damast, Catonsville, Md.; Jill Reed, Tulsa, Okla.; Jennifer
Short, Tulsa, Okla.; and Patricia Miller, Atlantic City, N.J 971
Harshbarger, Scott, Esq. district attorney, Middlesex County, Mass.; Jan
Smaby, first chairperson, Minnesota Sentencing Guidelines Commission,
Minneapolis, Minn.; Dr. William Rhodes, senior economist. Institute for
Law and Social Research, Washington, D.C.; and Brian Forst, research
director. Institute for Law and Social Research, Washington, D.C 988
ALPHABETICAL LISTING AND MATERIAL SUBMITTED
American Bar Association: Prepared statement 736
American Civil Liberties Union: Prepared statement 348
Appendix:
A. "Staff Reductions in Law Enforcement Agencies," Washington
Post 372
B. "Realistic Approaches to Crime Control," Civil Liberties, Febru-
ary 1983 373
C. ACLU testimony on H.R. 5679, Bail Provisions before House
Subcommittee on Criminal Justice, April 29, 1982 *'*
D. ACLU memorandum, analysis of S. 2572, "Bail Reform Act of
1982," July 26, 1982 375
E. ACLU Supreme Court amicus brief. The State of Illinois v.
Lance and Susan Gates, No. 81-430: Exclusionary Rule 384
F. ACLU statement on S. 2216, To Reform Habeas Corpus Proce-
dures, before Senate Judiciary Committee, April 1, 1982 <^
G. ACLU statement on S. 1630, Federal Criminal Code Revision,
before Senate Judiciary Committee, October 1, 1981 *'^
H. ACLU Evaluation of the Constitutionality of S. 114, as amend-
ed. The Proposed Federal Death Penalty Statute, July 28, 1981. <^>
I. ACLU statement concerning Insanity Defense before House Ju-
diciary Committee, May 12, 1983 *^*
J. ACLU testimony on Extradition before House Judiciary Com-
mittee, May 5, 1983 <*>
K. ACLU testimony on H.R. 595, the Federal Tort Claims Act
Amendments of 1983 before the House Subcommittee on Ad-
ministrative Law and Governmental Relations, April 27, 1983... "*
Atkeson, Timothy B.: Testimony 673
Damast, Margaret: Testimony 977
Federal Public and Community Defenders: Prepared statement 466
Forst, Brian: Testimony : 1000
Friedman, Leon:
Testimony 336
Prepared statement ; 348
George, Prof. James B., Jr.: Testimony 667
Giuliani, Rudolph: Testimony 12
Greenhalgh, Prof. William W.:
Testimony 667
Lectures by Justice Potter Stewart 676
Greenhalgh, Prof. William W. — Continued Page
Good Advice from a Justice, excerpt from the New York Times, May 4,
1983 735
Prepared statement on behalf of the American Bar Association 736
Standards Relating to Transfer Between Courts 797
Views presented on behalf of the Section on Criminal Justice 803
Harshbarger, Scott, Esq.:
Testimony 988
Prepared statement 992
Jensen, Lowell: Testimony 19
Knapp, James I.:
Testimony 542
Prepared statement 550
Responses to questions submitted by:
Senator Arlen Specter 560
Senator Charles McC. Mathias, Jr 594
Needed: Serious Solutions for Serious Juvenile Crime 601
News release, Department of Justice, December 5, 1982 634
News articles:
U.S. Studies Trials of Juveniles, from the New York Times, Decem-
ber 6, 1982 635
Debating New Jersey Youth Crime Law, from the New York Times,
August 1, 1982 636
Landau, David E.:
Testimony 342
Prepared statement 348
Marek, Edward F.:
Testimony 462
Position paper and testimony of the Federal Public and Community
Defenders 466
Summary of testimony 492
Miller, Edwin, L.. Jr.:
Testimony 290
Prepared statement 296
Resolution adopted by the Board of Directors of the National District
Attorneys Association 318
Miller, Patricia: Testimony 985
Moseley, Mark: Testimony 971
National Council of Juvenile and Family Court Judges 821
National Legal Aid and Defender Association: Prepared statement 507
Pratt, Larry: Testimony 326
Reader, Hon. W. Donald:
Testimony 816
Prepared statement of the National Council of Juvenile and Family
Court Judges 821
Reed, Jill: Testimony 979
Rhodes, Dr. William: Testimony 1001
Robb, Hon. Charles S.:
Testimony 223
Prepared statement 231
Illegal Drug Trafficking in the United States, Special Governor's Work
Session, February 27, 1983 240
Appendix A. The Governors' Project 254
B. Controlling Abuse and Illegal Traffic in Narcotics 256
C. Strategies for Drug Control Efforts 259
D. News release from the Department of Justice 265
Responses to questions submitted by Senator Paul Laxalt 267
Roper, Roberta: Testimony 9'74
Roth, Prof. Loren H.:
Testimony 828
Letter subsequently sent to Senator Specter, June 3, 1983, summarizing
major points in testimony 833
Treating Violent Behaviors in Prisons, Jails, and Other Special Institu-
tional Settings 838
Lowering the Jurisdictional Age of the Juvenile Court: Problems and
Prospects of Simple Solutions 872
American Psychiatric Association Statement on the Insanity Defense 893
Disposition of Insanity Defense Cases in Oregon 901
VI
Roth, Prof. Loren H.— Continued Page
Oregon's Reform of the Insanity Defense System 908
After Oregon's Insanity Defense: A Comparison of Conditional Release
and Hospitalization 916
Task Force Report 8: Clinical Aspects of the Violent Individual, American
Psychiatric Association 934
Shattuck, John:
Testimony 335
Prepared statement 348
Short, Jennifer: Testimony 982
Smaby, Jan: Testimony 996
Smith, Hon. William French:
Testimony 5
Responses to Senator Biden's questions regarding:
Habeas Corpus Reform 32
Exclusionary Rule Reform 42
Death Penalty 55
Research and Statistics 63
Justice Assistance 64
Tort Claims Amendments 87
Sentencing 92
Organized Crime and Drug Enforcement Task Forces 104
Formal statement of the Department of Justice 116
Snyder, John M.: Testimony 328
Symms, Hon. Steven: Testimony 321
Tjoflat, Gerald Bard:
Testimony 638
Prepared statement 644
Judicial Conference Sentencing Proposal, from the Congressional Record,
May 26, 1983 664
Walker, John M., Jr.:
Testimony 68
Prepared statement 76
Wilson, Richard J.:
Testimony 505
Prepared statement 507
Zimmerman, Hon. Leroy S.:
Testimony : 270
Prepared statement 285
Impact of Exclusionary Rule on Criminal Cases 272
APPENDIX
Part 1. — Extradition
Letter to Senator Laxalt from Powell A. Moore, Assistant Secretary for
Legislative and Intergovernmental Affairs 1009
Comments and Recommendations, S. 220, William S. Kenney, attorney at law. 1012
Letter to Hon. Paul Laxalt from Arthur L. Burnett, president. National
Council of U.S. Magistrates, September 8, 1983 1015
Part 2. — Exclusionary Rule
Letter to Senator Paul Laxalt from John E. Fennelly, Assistant State Attor-
ney, Stuart, Florida, May 18, 1983 1019
Warrant Searches and the Exclusionary Rule, A Rule in Search of a Reason,
by John E. Fennelly, from The Prosecutor (Winter, 1983) 1020
Excerpt from United States v. Leon, brief for the United States, Supreme
Court of the United States, No. 82-1771, October Term, 1983 1025
Part 3. — Capital Punishment
Congress and Capital Punishment, An Exercise in Symbolic Politics, by Bar-
bara Ann Stolz, American University 1087
VII
Part 4.— Habeas Corpus
Page
Letter to Hon. Paul Laxalt from Ralph J. Erickstad, chairman, Committee on
Federal Review of State Court Convictions, Conference of Chief Justices,
May 17, 1983, with attachments 1111
Proposals for Habeas Corpus Reform, by William French Smith 1116
Part 5.— S. 829
Letter to Hon. Paul Laxalt from Norman Darwick, Executive Director, Inter-
national Association of Chiefs of Police, Inc., May 25, 1983 1134
Testimony of the lACP on the Comprehensive Crime Control Act of 1983 1135
Letter to the Hon. Arthur L. Burnett, president. National Council of United
States Magistrates from Jean F. Dwyer, chairman. Committee on Sentenc-
ing, U.S. Magistrate, July 18, 1983 1151
Part 6.— Additional Correspondence
Letter to Hon. Edward M. Kennedy from Liza Cheuk May Chan, May 24. 1983 1157
The Case for Vincent Chin, A Tragedy in American Justice 1158
Letter to Senator Paul Laxalt from Randy Sue Pollock, chairperson. Federal
Practice Committee, California Attorneys for Criminal Justice, June 30,
1983 1162
'See "Federal Law Revision." Hearings before the Subcommittee on Criminal Justice of the
Committee on the Judiciary, House of Representatives, 97th Cong., 1st. and 2d sessions. Serial
No. 132, Parts 1, 2, and 3.
^See "The Habeas Corpus Reform Act of 1982." Hearings before the Committee on the
Judiciary, U.S. Senate, 97th Cong., 2d sess. Serial No. J-97-108.
^See "Reform of the Federal Criminal Laws." Hearings before the Committee on the Judici-
ary, U.S. Senate, 97th Cong., 1st sess. Part XVI, Serial No. J-97-60.
*See "Capital Punishment." Hearings before the Committee on the Judiciary, U.S. Senate,
97th Cong., 1st sess. Serial No. J-97-13.
*See "Reform of the Federal Insanity Defense." Hearings before the Subcommittee on Crimi-
nal Justice of the Committee on the Judiciary, House of Representatives, 97th Cong., 1st. sess.
^See Extradition Hearings before House Judiciary Committee, May 5, 1983.
' See "Federal Tort Claims." Hearinjrs before the Subcommittee on Administrative Law and
Governmental Relations of the Judiciary, House of Representatives, 98th Cong., 1st sess. Serial
No. 11.
COMPREHENSIVE CRIME CONTROL ACT OF 1983
WEDNESDAY, MAY 4, 1983
U.S. Senate,
Subcommittee on Criminal Law,
Committee on the Judiciary,
Washington, D.C.
The subcommittee met, pursuant to notice, at 10:10 a.m., in room
226, Dirksen Senate Office Building, Hon. Strom Thurmond (chair-
man of the full committee) presiding.
Present: Senators Laxalt, Biden, Kennedy, and Specter.
Staff present: John F. Nash, Jr., chief counsel and staff director;
Beverly McKittrick, majority counsel; William Miller, general
counsel; and Susan Fanning, chief clerk.
OPENING STATEMENT OF HON. PAUL LAXALT, A U.S. SENATOR
FROM THE STATE OF NEVADA, CHAIRMAN, SUBCOMMITTEE ON
CRIMINAL LAW
Senator Laxalt. The subcommittee will be in order.
This is the first of a series of hearings which the Subcommittee
on Criminal Law will hold on S. 829, the Comprehensive Crime
Control Act of 1983. My good friend and chairman of the Commit-
tee on the Judiciary will chair this first day.
This bill, sent to Congress by President Reagan, is a package of
well-reasoned proposals that do not simply add to the list of Feder-
al statutes and Federal crimes but that make much needed im-
provements in the Federal criminal justice system.
Crime — violent crime, drug-related crime, and organized crime —
is a major threat to American society. S. 829 is a comprehensive,
well-considered response to this threat. Most of the parts of the
package have been the subject of hearings and votes in the Senate
in recent years. The purpose of these hearings is to bring the
record on these measures up to date and to provide a record for the
new proposals in the bill. The hearings will provide an opportunity
for all of the major parties interested in Federal criminal justice
reform to discuss the legislation and to point out its merits and its
weaknesses.
I want to thank the Attorney General and the other distin-
guished witnesses from the Department of Justice and from the
Treasury Department for leading off these hearings. The Depart-
ment of Justice put this bill together in its present form, and the
subcommittee looks forward to benefiting from the expertise of
these various gentlemen in our deliberations.
At this point, I would like to turn the gavel over to my distin-
guished chairman, Senator Thurmond.
(1)
OPENING STATEMENT OF HON. STROM THURMOND, A U.S. SENA-
TOR FROM THE STATE OF SOUTH CAROLINA, CHAIRMAN, COM-
MITTEE ON THE JUDICIARY ^
The Chairman [presiding]. Thank you very much, Mr. Chairman.
I am pleased to welcome the Attorney General of the United
States to appear before the Subcommittee on Criminal Law, Senate
Committee on the Judiciary to launch consideration of a massive
package of criminal law amendments proposed by the administra-
tion entitled "The Comprehensive Crime Control Act of 1983."
I will be very pleased to cooperate with the able chairman of this
subcommittee in this matter. Since he has to leave for a confer-
ence, I believe, with the President, I will chair this session for him.
Mr. Attorney General, we are very pleased to have you with us
this morning. No one knows more than you the toll violent crime,
illegal drugs, and organized crime takes on this society. Various
polls and surveys over the past few years show that one-third of all
households in the United States are touched by crime each year;
one in five Americans is a victim of a crime each year. The latest
available FBI crime clock figures show someone is killed every 23
minutes, a woman is raped every 6 minutes, and a person robbed
every 55 seconds. A burglary takes place every 8 seconds. One of
the FBI major index crimes is committed every 2 seconds. While
the FBI recently reported that serious crime dropped by 4 percent
in 1982, such a drop hardly alters the crime clock rates and leaves
us far behind in dealing with a 21 percent rise in serious crime
since 1977 and a walloping 254 percent since 1962.
I do wish to commend you, though, Mr. Attorney General, for the
great work that you have done, and we are so pleased that this
crime rate has been reduced, and I think probably you are more
responsible than any one individual.
Having reviewed the problem, we must recognize that in our
Federal system the State and local authorities are primarily re-
sponsible for protecting our communities from crime. As limited as
the Federal role may be in this regard, however, the Congress and
administration have the responsibility to make the Federal effort
as effective as possible and to set an example of excellence for
others.
The Comprehensive Crime Control Act of 1983 constitutes a
major legislative contribution toward meeting this responsibility.
The proposal includes among other things:
Reform of the bail laws to permit pretrial detention of dangerous
defendants.
A constitutional procedure for imposition of the death penalty in
Federal cases involving treason, espionage, murder, and an attempt
to kill the President.
Improvements to the sentencing system by abolishing parole and
most good time credit; standardizing sentences through guidelines;
permitting Government appeal of lenient sentences below the
guidelines; and allowing a life sentence without parole in the most
serious offenses.
• The opening remarks of Senator Thurmond and text of S. 829 given before the U.S. Senate
can be found on p. S 3076 in the March 19, 1983 Congressional Record.
Modification of the judicially created exclusionary rule that now
keeps evidence out of the criminal trial on the ground that it was
illegally seized.
Providing more emphasis on protecting and meeting the needs of
the victims and witnesses of crime.
Improving the drug penalty structure of Federal law.
Improving the operation of the criminal forfeiture laws applica-
ble to organized crime and drug offenders.
Modifying the current insanity defense and related procedures to
more effectively enhance the safety of the community.
Modifying Federal procedures for review of State criminal con-
victions to afford greater finality and deference to State court deci-
sions.
I am looking forward to working with this administration and
the Department of Justice to enact the best legislation possible.
[The opening statements of Senators Kennedy and Biden follow:]
Opening Statement of Hon. Edward M. Kennedy, a U.S. Senator From the
State of Massachusetts
Mr. Chairman, I welcome these hearings on comprehensive anticrime legislation.
We face a serious problem of crime in America, and there is an urgent need for
effective leadership by the Federal Government.
There is widespread agreement on the need for basic reforms in the Federal laws
on bail and sentencing. Sentencing is a scandal that permits the courts to play judi-
cial roulette in determining whether defendants convicted of violent crimes go free
or go to jail. Almost every day, the press reports the abuses caused by the unfet-
tered discretion of judges in criminal sentencing. Excessively harsh sentences and
incredible examples of leniency proliferate side by side, and undermine public confi-
dence in our system of justice.
Our outdated bail laws fail to protect the safety of the community and permit vio-
lent offenders to return to the streets to commit new crimes while awaiting trial.
We also suffer from outdated provisions on organized crime, narcotics crime, and
violent juvenile crime.
We have worked long and hard on these issues and we know what the needed
reforms are. In the area of sentencing, we must provide certainty of sentencing,
guidelines to limit judicial discretion, abolition of parole, and appellate review of
sentences. In this Congress, I have introduced sentencing reform legislation which is
virtually identical to the measure which passed the Senate last year by a vote of 95-
1.
With respect to bail, judges must be permitted by law to consider the dangerous-
ness of a defendant in determining whether and under what conditions to permit
release on bail.
Other needed reforms are also clear. Criminal forfeiture statutes must be
strengthened to enhance the ability of prosecutors to confiscate the assets of crimi-
nal organizations and the proceeds of illegal drug trafficking. And violent juveniles
must be held accountable for their crimes. They should be fingerprinted and photo-
graphed, and tried and sentenced as adults, but incarcerated separately from adult
criminals. These needed reforms are neither too complicated to legislate nor too dif-
ficult to implement.
And we can adopt and carry out all these measures without jeopardizing the basic
constitutional rights of any citizen or the civil liberties of our people.
Finally, we must make assistance to State and local governments a higher prior-
ity. Local police, and prosecutors, and courts are our front line against crime and
adequate Federal support for their efforts must be an essential component of any
responsible effort we make.
A few years ago. Congress was in the vanguard of proposals like these for wise
reform. In fact, many of them originated in the bipartisan hearings on crime held in
this committee in the 1970's. But in recent years, we have fallen behind the States
in updating our criminal laws. Many of the reforms we sought in Congress have
been introduced, evaluated, refined and adopted in the States, while we have failed
to act. While criminals rush to invent new offenses such as computer fraud and
move crime into the twenty-first century, Congress has yet to bring the Federal
criminal laws into the twentieth century.
There are no easy answers to this problem. There are no Kemp-Roth tax cuts, no
budget cut quick fixes, no law and order panaceas that will help in fighting crime.
But we have made some worthwhile bipartisan advances in this committee, and I
look forward to even greater progress in the weeks to come.
Opening Statement of Hon. Joseph R. Biden, Jr., a U.S. Senator From the State
OF Delaware
Mr. Chairman, I am particularly pleased to welcome the Attorney General here
today because this hearing is the first step toward enactment of a package of crime
legislation in this Congress.
The Senate Judiciary Committee has worked for over a decade to develop a com-
prehensive crime bill which would make the reforms essential to a fair and effective
Federal criminal justice system. Unfortunately, partisan concerns and the unwill-
ingness of some Members of the Senate, the House and representatives of the ad-
ministration, to compromise prevented enactment of substantial reform legislation.
Last Congress a criminal law reform package met with a degree of success many
thought impossible. Everyone in this room knows how far the crime package pro-
gressed: The Senate passed the Violent Crime and Drug Enforcement Improvements
Act of 1982, (S. 2572). Although we sent the bill to the House very late in the session
the members of the House Judiciary Committee demonstrated a willingness to
devote long hours to reach agreement on substantial portions of the bill. In addition
to the final package, many compromises were reached in bail and sentencing
reform. In fact, insufficient time at the end of the session may have been the major
factor which prevented final agreement in bail and sentencing. Although the Presi-
dent vetoed the final package he expressed strong support for a substantial portions
of its contents. In fact, the administration-proposed bill before us today, the Compre-
hensive Crime Control Act of 1983 (S. 829) clearly demonstrates the administration's
support of the Senate-passed bill by incorporating many of its provisions, including
bail reform, sentencing reform, forfeiture reform, and numerous amendments to
current law directed at violent crime.
I believe Chairman Thurmond will agree with me that successful Senate and
House passage of comprehensive anti-crime legislation last Congress taught us some
very important lessons.
First, under Chairman Thurmond's leadership, the members of the Judiciary
Committee and ultimately the Senate recognized the need to compromise and deve-
lope comprehensive legislation with bipartisan support. To achieve that goal some
Senators agreed to process important anti-crime bills as separate legislation because
they recognize that one controversial provision could slow or halt progress on the
entire package.
Second, we found substantial agreements in our negotiations with Members of the
House by deleting from the package those provisions which would be so controver-
sial that they would jeopardize House passage.
The lessons of last Congress clearly showed the way to enactment into law of com-
prehensive anti-crime package this Congress: Members of both parties must work
toward that goal by demonstrating a willingness to compromise and agreeing to
process controversial legislation as separate bills rather than in a package. Also,
Senate passage of a comprehensive bill must occur early in this session to provide
sufficient time to reach agreement with our colleagues in the House.
The administration crime bill makes a significant first step in this process by in-
corporating many provisions of the bipartisan bill of last Congress. However, some
provisions in the bill, which did not pass last Congress appear to be more of a legis-
lation wish list than an assessment of what is likely to be passed by both the House
and Senate this Congress. Regardless of our individual views we all know what
those provisions are because both the Senate and House have been through seem-
ingly endless debate, numerous amendments, threatened filibusters and other delay
tactics, in some instances over more than one Congress.
We are very close to finally enacting comprehensive anti-crime legislation into
law. We must learn from our experience and begin with the bill which passed the
Senate last Congress 95 to 1. Proponents of any additions to that bill bear the
burden of proving that a new provision will not prove controversial and prevent en-
actment of the entire package into law in this Congress.
Chairman Thurmond, I am eager to once again work with you, the Criminal Law
Subcommittee chairman. Senator Laxalt and with all of my colleagues on both sides
of the aisle.
The Chairman. Mr. Attorney General, we are very pleased to
have you with us, and we will be honored now to have you proceed
with your testimony.
STATEMENT OF HON. WILLIAM FRENCH SMITH, ATTORNEY GEN-
ERAL OF THE UNITED STATES, U.S. DEPARTMENT OF JUSTICE
Mr. Smith. Thank you very much, Mr. Chairman.
I am very happy to be here today to testify on behalf of the Com-
prehensive Crime Control Act of 1983.
Our bill is just that — comprehensive, in the sense that it con-
cerns problems throughout the criminal justice system. The most
serious of these problems, however, are those raised by the involve-
ment of organized crime in drug trafficking. Before commenting on
the legislation before you, I would like to take a few moments to
review these problems and our response to them.
Organized crime has expanded its operations to include drug
trafficking. Indeed, most drug trafficking today is organized crime.
Large-scale drug dealers must organize their operations. They
obtain the illicit substances, or the rights to the substances, over-
seas. Within our borders, the drug dealers have set up elaborate
enterprises for cutting the pure imported drugs and distributing
them over a wide geographical area.
And the operation does not stop there. Drug money is laundered
through businesses set up as "fronts" for drug dealers. The profits
are then plowed back into the drug business, as with any major en-
terprise. Increasingly, some of the profits are actually invested in
legitimate businesses — including real estate in Florida, restaurants
in California, and other businesses across the Nation.
And the tremendous multibillion dollar profits from drug traf-
ficking are used to finance the other illegal activities of organized
crime — gambling, pornography, prostitution, extortion, loanshark-
ing, fraud, weapons trafficking, and public corruption.
Through its drug profits, organized crime spawns a great deal of
the crime in this Nation. In addition, illicit drugs themselves
spawn a great proportion of crime. One recent study demonstrated
that over an 11-year period some 243 addicts committed about one-
half million crimes — an average of 2,000 crimes each or a crime
every other day — to support their habits. Half of all jail and prison
inmates regularly used drugs before committing their offenses. Ac-
cording to a recent Rand study, addicted offenders in California
committed nearly nine times as many property crimes each year as
nonaddicted offenders.
Although much remains to be done, this administration has al-
ready launched a new and promising assault upon organized crime
and drug trafficking. A year ago last January, the FBI was brought
into the drug fight for the first time — to complement the excellent
work of the DEA. Thereby, we gained not only the FBI's resources,
but also its years of experience in fighting organized crime. Prior
to January 1982, the FBI had no specific drug investigations under-
way. As of April 25 of this year, the FBI had more than 1,300 — and
about 30 percent of these were joint investigations with the DEA.
6
We have in fact scored dramatic successes against organized
crime. We have indicted and convicted numerous high-level mem-
bers of syndicate families — in some cities, the top structure of orga-
nized crime families regarded as untouchable a few years ago. In
the last 2 years, we have convicted more than 1,200 persons in or-
ganized crime cases — including more than 350 members and asso-
ciates of La Cosa Nostra. In addition, more than 300 La Cosa
Nostra members and associates are currently awaiting trial.
To build on these successes, the President announced last fall
perhaps the most significant assault on organized crime and drug
trafficking ever planned. Critical in this effort are the 12 new re-
gional task forces designed to mount a coordinated attack by all of
the involved Federal agencies against organized drug trafficking.
These task forces are operational — they have cases under investiga-
tion. We expect each of the task forces will be fully staffed by the
end of the summer.
By creating these task forces — and bringing the FBI into the
battle against drug trafficking last January — we will have approxi-
mately doubled our drug enforcement resources in one year.
Unlike prior Federal drug efforts that focused on the street level,
our new task forces will concentrate on destroying the top levels of
organized drug trafficking.
In addition, just last month the White House announced the cre-
ation of a new drug interdiction group headed by Vice President
George Bush. This group will be looking outward from our borders
in an effort to stop the movement of illicit drugs into this country.
This new group will harness the power of the U.S. Customs, the
Coast Guard and the military to deploy a first line of domestic de-
fense against illicit substances shipped towards the United States.
Meanwhile, within our borders, the Organized Crime Task Forces
will fight drug trafficking.
Although we have made a good beginning in this new effort
against the most serious form of crime in America, it is essential to
the fight against organized crime that the Congress enact the sig-
nificant criminal law reforms that the President has proposed. Or-
ganized crime is sophisticated and will take advantage of any
weakness in the law — and weaknesses in each of these areas have
been clearly identified through difficult and costly experience.
Appearing before you shortly will be Associate Attorney General
Rudolph Giuliani, Assistant Treasury Secretary John Walker, and
Assistant Attorney General Lowell Jensen, who will cover the
major aspects of the bill in more detail. Right now I would like
briefly to note several areas where we believe reform is badly
needed.
We propose reform of the Federal bail system by authorizing the
pretrial detention of defendants shown to be dangerous to the com-
munity and by reversing the current presumption in favor of bail
pending appeal. This has been the law in the District of Columbia,
and it would restore the discretion vested in Federal judges prior to
the Bail Reform Act of 1966. The courts should be specifically au-
thorized to inquire into the source of bail, and they should refuse
to accept money or property that will not reasonably ensure a de-
fendant's appearance at trial.
We propose sentencing reform in order to reduce the consider-
able disparity in the sentencing process and also to restore truth in
sentencing. Specifically, we propose abolishing the Parole Commis-
sion and establishing a system of uniform, determinate sentencing;
authorizing Government appeal of sentences; and restructuring the
entire range of criminal fines and prison terms.
Determinate sentencing improves the ability of the courts to
impose a just, visible punishment that reflects a measured balance
of society s interests. This bill includes provision for a new level of
mandatory sentencing for violent crime, and it would serve to en-
hance the deterrent effect of imprisonment where imposed in
proper cases in the area of "white collar" crime such as fraud, anti-
trust, and tax cases in particular.
We propose making criminal forfeiture available in all major
drug trafficking cases. We must strengthen procedures for "freez-
ing' forfeitable assets pending judicial action, expand the classes of
property subject to forfeiture, and facilitate the administrative for-
feiture of conveyances and other property in uncontested cases. We
must provide specific authority for the forfeiture of the proceeds of
an "enterprise" acquired or maintained in violation of the RICO
statute.
We also propose modification of the exclusionary rule, which has
substantially hampered our law enforcement efforts. The suppres-
sion of evidence has freed the clearly guilty, diminished public re-
spect for the law, distorted the truth finding process, chilled legiti-
mate police conduct, and put a tremendous strain on the courts. A
recent National Institute of Justice report found that when felony
drug arrests were not prosecuted in California, 30 percent of the
time it was for search and seizure reasons. It also found that "[t]o a
substantial degree, individuals released because of search and seiz-
ure problems were those with serious criminal records who ap-
peared to continue to be involved in crime after their release."
It is time to bar the use of the exclusionary rule when a law en-
forcement officer has acted in good faith, reasonably believing his
action to have been legal. This modification of the exclusionary
rule — which is already the law in the fifth and eleventh circuits —
would by itself do a great deal to restore public confidence in our
criminal justice system.
Another reform concerns the insanity defense. It is used in only
a small percentage of criminal cases — and it is used successfully in
an even smaller percentage. Nevertheless, the public attention re-
ceived by those cases has fully exposed glaring flaws in that de-
fense. It is for this reason that the administration proposed reform
of the insanity defense to limit its use to those who are unable to
appreciate the nature or wrongfulness of their acts. Under our
original proposal, the burden would rest on the defendant to estab-
lish insanity by clear and convincing evidence.
Already, our original proposal — plus public concern about the
abuse of the insanity defense — has moved many knowledgeable per-
sons to rethink the issue. Committees of the American Bar Associ-
ation are considering — and the American Psychiatric Association
has adopted — worthy proposals for reform. Those proposals would
eliminate the second — or "control" — prong of the two-part ALI-
Model Penal Code test. In other words, they would limit the insan-
8
ity defense to those situations in which, as the result of mental dis-
ease or defect, a defendant could not appreciate the wrongfulness
of his conduct. Combined with requiring the defendant to prove by
clear and convincing evidence that he did not appreciate the
wrongfulness of his conduct, this approach would represent a sub-
stantial improvement over present law. By supporting such an ap-
proach, we hope to fashion a modification of the insanity defense
that will enlist a broad base of support — and insure speedy reform
in the Congress.
As several members of the Supreme Court — and other concerned
citizens — have pointed out, one of the greatest problems facing our
legal system is the overload of cases in the courts. Too much busi-
ness insures that the cases most in need of prompt judicial atten-
tion may not receive it. As one observer noted, due process of law
risks becoming overdue process of law.
To ease at least some of the burdens on the courts, we also pro-
pose a revision of the Federal habeas corpus laws. Our reform
would impose a statute of limitations and provide that issues fully
litigated in State courts would not be subject to relitigation in Fed-
eral courts. The purpose of this reform is to restore a degree of fi-
nality to criminal convictions, but an incidental effect would be the
reduction of substantial burden on the Federal courts. State prison-
ers filed more than 8,000 habeas cases in Federal court just last
year. The only thing to commend the vast majority of those cases,
to quote Judge Learned Hand, "is the hardihood in supposing they
could possibly succeed."
The legislation before you now includes all of these proposals
plus more than 20 others. This comprehensive criminal law reform
bill collects in one place all of the most necessary changes — includ-
ing, for example, a constitutionally sound Federal death penalty. It
also includes provisions concerning the Tort Claims Act, the Jus-
tice Assistance Act, drug enforcement penalties, and surplus Feder-
al property.
In drafting this bill, we were ever mindful of the need to safe-
guard individual liberty. But we also recognized that the most basic
individual liberty is freedom from violence, and that liberty can be
secured only by effective and vigorous enforcement of the criminal
laws. As Judge Hand recognized 50 years ago: "Our dangers do not
lie in too little tenderness to the accused. What we need to fear is
the archaic formalism and the watery sentiment that obstructs,
delays, and defeats the prosecution of crime."
That concludes my opening statement. Rudy Giuliani, John
Walker, and Lowell Jensen are here to discuss the legislation in
more detail and to answer any questions you may have.
Thank you very much.
The Chairman. Thank you, Mr. Attorney General.
I understand that you have another appointment and cannot
remain longer. So we will just reserve questions for the other wit-
nesses.
We appreciate your appearance.
Mr. Smith. Thank you very much.
Senator Kennedy. Could I just have one question?
Would the Senator yield?
The Chairman. Senator Kennedy.
Senator Kennedy. Mr. Attorney General, just one question on,
really, it deals with the strategy.
I think that we have worked out, over a long period of time, on
this committee, a bipartisan effort which has coalesced around the
areas in which there can be substantial agreement. I must say that
the proposal made by the administration includes a variety of dif-
ferent elements which are extremely controversial both, I think,
within this committee, and certainly on the floor of the Senate.
I am just wondering, without getting into the details of the par-
ticular provisions — I know you have to run — what is your own
strategy? The Democrats have put in their program, the Republi-
cans have put in their program, and there is substantial agreement
on a number of areas that can have a real impact. Why are we not
trying to take the elements of both programs on which we agree
and move that rapidly through the Senate, and see what can be
done in the House.
I must say as somebody who has been here over 20 years, I have
seen the enormous diversity on law enforcement in the early years,
and then the coming together during the period of the late seven-
ties. I think we are right back in the situation where we have
added too much in terms of this legislation.
Maybe you just believe as a matter of principle that the contro-
versial issues have to be so included. But as a practical matter, I
think that there is a very little likelihood that they are going to be
enacted into law. There is a real chance of jeopardizing the whole
crime package, which I believe the President is committed to, I
know you are, and many members are.
I would just be interested if you did have 2 minutes to comment
on what your own view and strategy is, because there are strong
views not only in this House, but as you understand, in the House
of Representatives, on a variety of these amendments. Yet there is
very substantial agreement on the vast majority of the package,
whether it is sentencing, whether it is the bail reform, whether it
is violent juvenile offenders, provisions dealing with drug traffick-
ers, and a variety of other provisions which both the Republicans
and Democrats have worked on.
Would we not be wiser to take those areas where we have sub-
stantial agreement, and move those as a package, and deal with
the controversial issues, such as the death penalty on a separate
tract.
Are we at a point where we want to isolate those individuals who
oppose the controversial items and, make them appear like they
are against doing something on crime, or are we just trying to get
this passed?
Mr. Smith. Well, Senator, we feel, as you know, that all of the
proposals in that package are very badly needed. It is true, and cer-
tainly true in the Senate here, that a bill was passed last year by a
vote of 95 to 1. It never got out of the House.
Senator Kennedy. We have other assurances from the chairman
of the House Committee on that issue.
Mr. Smith. The Senate certainly has done a good deal with re-
spect to making some of the changes that we think are needed. The
Congress as a whole has done very little, and we think that it is
25-694 0-84-2
10
important that all of these proposals be seriously considered and
acted on.
Now, it may very well be, as you say, that there are differences
of opinion. I am sure there are, with respect to a certain number of
these proposals. But it does seem to me that at least the floor of
each House ought to have the opportunity to vote on each of those
proposals as a package, or otherwise.
Now, the strategy of how it is put together, of course, is really
the responsibility of this committee and the Senate.
Senator Kennedy. Well, it is also yours, hopefully, as well. You
are influenced and guided by the committee here, and by the ad-
ministration.
Mr. Smith. It is ours. Senator Kennedy, and we think we have
done that by putting together this package, and submitting it to
both the Senate and the House. We would like to see all of those
proposals considered, because we think every one of them is impor-
tant.
Senator Kennedy. Do you think adding a death penalty to this
particular package assists in moving this whole package through,
in terms of the Senate of the United States, given what a number
of the Members of the Senate have said?
Clearly, you know, there is always the possibility of cloture, fili-
busters, and all the rest of it. But as someone who has been in-
volved in the process, and who is opposed to the death penalty, I
certainly have indicated I would never filibuster, but I think there
are others who would. There has been a serious effort on a number
of the consensus areas which I have just mentioned here.
If we could have a chance to vote on those, and move those
through, and get the House of Representatives to do likewise, we
will have accomplished something, but it is inconceivable to me
that you expect that with your package, you are really doing a
great deal more than posturing, quite frankly.
I have a lot of respect for you and the Department, but it just
seems to me that the better part of wisdom is to try to find the
areas where there is agreement, and there are many, and they are
extremely important, and they can make some important differ-
ence in trying to deal with crime, and get those passed, and I
would dare say that you could take 8 of 10 or the principal items in
there and pass them through the Senate this afternoon.
But I just raise this as a question of strategy, because I am very
interested in the issue, as are the people in my State, and all across
the country, and I am not too sure that we are not doing their in-
terests a disservice by not moving the controversial issues separate-
ly from the consensus package.
But perhaps later down the road, when push comes to shove, we
can come back to you and talk to you about a strategy, because I
think we are going to be there.
I thank the Chair.
Mr. Smith. We certainly hope that all of these proposals do get
to the floor and are voted on by both Houses. We think they are all
important.
Now, how they get there, of course, is another matter.
Senator Biden. Mr. Attorney General, could I ask one question?
The Chairman. Senator Biden.
11
Senator Biden. I apologize for being late, General.
I want to echo the statements that Senator Kennedy just made,
and clarify one thing.
The Senate and the House did pass a very significant bill last
year, the most significant anticrime legislation that has come
through Congress in the last 15 years. Now I understand the ad-
ministration did not like it. The President vetoed it, not Congress.
We passed the bill and it did not have sentencing or bail reform in
it.
We did get a commitment, with Herculean efforts, and with your
Department aiding us, from the chairman of the House Judiciary
Committee, to report a sentencing bill and a bail bill this Congress.
The number three man on this committee, Senator Laxalt, has
agreed to report out a sentencing bill by June 1, so that we can
quickly send a bill to the House.
I want to emphasize that we did pass a significant piece of legis-
lation through both Houses last year and put it on the President's
desk. I do not think anyone who has been here even 3 days can
believe that we are going to be able to pass in its entirety either
the crime package that Senator Kennedy and I introduced on the
Democratic side (S. 830), or this package (S. 829).
And I really think that if we are going to play politics, and say
that we are going to get every element of the package and vote
each up or down, and make it an election issue, I can assure you
that — not because I will do anything about it but because of the
nature of the beast — we will get nothing done here.
We have a golden opportunity to keep the House to its word on
sentencing, and a golden opportunity on bail, two of the four most
important aspects of any legislation that has been proposed here,
and 85 percent of everything else that is in here, I think it can
pass.
I hope we can work with you, General, on trying to come up with
a bipartisan package that was engineered, like the one engineered
by the chairman of this committee last year.
Mr. Smith. Well, we certainly agree with most of thie provisions
of the bill that you are referring to. We do not think that it was
anywhere nearly as extensive as it should have been, or as this
package is, or as what I hope the Congress will do this session.
As you know, that veto was for completely independent reason,
not having to do with the merits of any of the proposed, crime
changes.
Senator Biden. Thank you.
The Chairman. I might say. General, that it is my intention, if
we can, to get this package before the full committee, and pass as
much of it as we can. If the committee votes out certain sections,
well that will be the privilege of the committee. I certainly appreci-
ate the spirit of cooperation of Senator Kennedy and Senator Biden
with respect to many of these provisions.
Senator Kennedy. I must say that the Chair has been, since we
started, extraordinarily cooperative and responsive. There have
been a number of different areas that I know that he and I and
other members have differed on, but he has been persistent in
trying to see that we are able to get passed what can make a differ-
ence on this issue.
12
I would just hope that we could could continue in that spirit.
Senator Biden. There is no way that we can pass anything with-
out expending political capital. Senator Kennedy has expended po-
litical capital from the folks to the left who are unhappy with the
idea that he would not filibuster the death penalty and many other
provisions.
Senator Thurmond expended a great deal of political capital by
agreeing to the fact that he would not allow certain provisions to
come up in the package we had last time. The only way that we
can legislate around here is to have people who are willing to legis-
late and expend political capital. Both of these men have demon-
strated that, although they come from opposite perspectives, and I
hope that the administration can demonstrate that same kind of
willingness to expend some political capital, and get something
passed.
Mr. Smith. Well, we very much appreciate the actions taken by
the Senate in the last Congress. We certainly want to do every-
thing that we can do to cooperate and work with this committee
and all of those involved in connection with the current package,
because what we are talking about is a very important public inter-
est issue. I think we all have responsibility, and we certainly all
want to cooperate to the fullest extent. I can certainly say on
behalf of the administration that we intend to do just that.
Senator Biden. We are happy to cooperate.
The Chairman. I might say, Mr. Attorney General, that I favor
the package. I think it is an excellent package.
I would be very pleased to see it passed just as it was submitted
to us, and I think we can take it up in the committee, but I cannot
assure you that every provision in the package will be approved.
That will be up to the committee. We will just have to vote on each
provision in the committee, but we will do the best we can.
Thank you very much for your appearance.
Mr. Smith. Thank you.
The Chairman. Our next witnesses are the Associate Attorney
General, Rudolph Giuliani, the Department of Justice; Assistant
Attorney General Lowell Jensen, the Department of Justice; and
John Walker, the Department of the Treasury.
You know we approved your nomination in the District of New
York?
STATEMENT OF RUDOLPH GIULIANI, ASSOCIATE ATTORNEY
GENERAL, DEPARTMENT OF JUSTICE, ACCOMPANIED BY
LOWELL JENSEN, ASSISTANT ATTORNEY GENERAL, DEPART-
MENT OF JUSTICE; AND JOHN M. WALKER, JR., ASSISTANT SEC-
RETARY (ENFORCEMENT AND OPERATIONS) DEPARTMENT OF
THE TREASURY
Mr. Giuliani. Yes, I did, Mr. Chairman. Thank you very much.
Mr. Chairman, members of the subcommittee
The Chairman. The Department of Justice, I believe, has a very
full statement on this matter. I think we might place that in the
record and have the witnesses summarize significant joints as they
see fit.
13
Senator Kennedy. Mr. Chairman, could I include an opening
statement, at an appropriate place?
The Chairman. Without objection, the opening statement
Senator Kennedy. And I have just one or two questions, both on
the bail and sentencing. Some differences in where we were last
year, but I would like to just submit those, if I could, for the record.
The Chairman. Without objection, the opening statement of Sen-
ator Kennedy, and the opening statement of Senator Biden will
follow my opening statement, if that is agreeable.
You gentlemen may proceed.
Mr. Giuliani. Mr. Chairman, members of the subcommittee, I
appreciate this opportunity to testify regarding the President's
Comprehensive Crime Control Act of 1983.
We have submitted for the record a lengthy written statement,
so what I would do, Mr. Chairman, is briefly summarize some of
the provisions of the bill.
Assistant Attorney General Jensen will summarize others, and
Assistant Secretary of the Treasury, John Walker, several sections.
I will cover bail reform, insanity defense reform, Federal interven-
tion in State proceedings, surplus property amendments, and sen-
tencing reform.
Mr. Jensen will cover — we both will cover sentencing reform —
the exclusionary rule, justice assistance, drug enforcement amend-
ments, and capital punishment; and Mr. Walker will cover forfeit-
ure and the Federal Tort Claims Act.
Mr. Chairman, in our view, the first title of the administration's
crime bill is certainly one of the most significant, that is, bail
reform.
Unfortunately, the shortcomings of current law are most evident
when we are dealing with the most serious criminal offenders, ha-
bitual or violent offenders, and the leaders of the drug trafficking
syndicates.
In Miami, for example, although the average money bond for
drug defendants is $75,000, 17 percent of these defendants never
appear for trial. For them, money bonds are nothing more than a
cost of doing business, and a means of escaping prosecution. For
many nondrug defendants, bail is a means of securing release from
custody so that they can continue preying upon the public.
In a Michigan case, late last year, a particularly violent bank
robber, George Gibbs, was released from Federal custody on $25,000
bail, and 4 days later was arrested for holding up a second bank
and shooting a local police officer in the process of attempting his
getaway.
In short, Federal bail laws do not adequately protect the public
from violent criminals and dope traffickers. We recommend that
the courts be required to consider danger to the community, as
well as risk of flight in making bail decisions.
It is difficult for many laymen to believe that Federal bail laws
now look only to the flight issue. Presently, Federal judges making
release decisions as to demonstrably dangerous defendants face a
dilemma. They may release the defendants despite the danger that
he poses to public safety, or they can attempt to find some reason,
such as risk of flight, to justify a high money bail which the de-
fendant cannot meet.
14
In short, judges too often find it necessary to choose between pro-
tecting public safety, which may require intellectually dishonest
findings, or applying the law as presently written, and releasing
such defendants, recognizing the danger that they pose to the com-
munity.
Although the provision in our bail reform proposal authorizing
consideration of a defendant's dangerousness in setting release con-
ditions, and a limited category of cases as the basis of denying re-
lease altogether, is probably the most important concept in the bail
reform title, there are other provisions that are equally significant.
The bail title, for example, clearly authorizes courts to inquire into
the source of property that will be used to post bond, and to reject
property derived from criminal activity. The bail title would also
make penalties for bail jumping commensurate with those applica-
ble to the underlying criminal offense with which the defendant is
charged, in requiring that such bail-jumping penalty run consecu-
tively with other prison terms imposed.
The bill also shifts the current presumption favoring release on
bail following conviction and pending appeal, so that the defendant
is required to show, in order to secure postconviction release, that
he will not flee, or pose a danger to the community, and that his
appeal raises a substantial question of fact or law likely to result in
reversal of his conviction.
To me, this is one of the most absurd provisions in the Federal
law. After a person now, under current Federal law, is convicted of
a crime, the presumption operates in favor of that person being re-
leased. That, in essence, is having exhausted the rights, not of the
accused, or those who might possibly be presumed innocent, but
rather elevating the rights of the convicted over the rights of the
public and society.
It was an absolutely absurd extension of the bail laws, and prac-
tically it results in most Federal defendants, after conviction, being
released on bail, and not being incarcerated for a year, a year and
a half, and many of our defendants, many of our fugitive defend-
ants, are in that category, those who have already been convicted
of crimes.
The second aspect of this that is very important is that, with all
the changes that have been made in drug enforcement as outlined
by the Attorney General, the increase in the number of FBI agents
now doing drug investigations, that were not doing drug investiga-
tions a year ago, and 18 months ago, an increase of about 600 or
700 agents, the task force increases, which will be an additional
1,000 agents, doing drug cases, there is no reason to believe that,
without a change in our bail laws, the result of their efforts will
not be just a commensurate increase in the number of fugitives —
drug fugitives.
At last count we had a little under 2,000 drug agents and over
3,000 drug fugitives. There is no reason to believe that when we
have 4,000 or 5,000 drug agents, we would not have 7,000 or 8,000
drug fugitives, unless the bail laws are changed in the way in
which this committee has already considered it and we are propos-
ing.
Another important part of the President's crime bill is title V, to
reform the insanity defense now applicable in the Federal criminal
15
justice system. Although the insanity defense is used in compara-
tively few Federal cases, the defense raises fundamental issues of
criminal responsibility which the Congress should address, and,
also, in assessing how often the defense is used, one must also look
to any number of cases where a plea results or a disposition results
in which the defendant, instead of being convicted, is placed in a
mental institution or is civilly committed.
And, in fact, under State systems that happens quite frequently.
As a result of the Hinckley case, there has been a careful review of
the insanity defense, and a consensus has emerged for narrowing of
the defense, particularly the volitional arm of the defense, as it is
now used in Federal courts, which focuses upon the ability of the
defendant to control his conduct.
As the American Psychiatric Association noted in December of
last year, the line between an irresistible impulse and an impulse
not resisted is probably no shorter than that between twilight and
dusk.
Since the experts themselves recognized a virtual impossibility of
determining whether the defendant can or cannot control his con-
duct, we propose to limit the insanity defense to the so-called cogni-
tive arm, that is, a defendant would be deemed not guilty by
reason of insanity only if, as a result of mental disease or defect, he
was unable to appreciate the nature and quality of the wrongful-
ness of his acts.
Otherwise, mental disease or defect would not constitute a de-
fense. Furthermore, opinion evidence by psychiatrists on the ulti-
mate question of whether the defendant had the mental state or
condition constituting either an element of the crime or a defense
would be prohibited, and the defendant would have the burden of
proving his insanity by clear and convincing evidence.
We believe this reform would bring insanity issues back into the
realm where psychiatric witnesses can provide reliable evidence.
The question for the jury would be whether the defendant knew
what he was doing or that what he was doing was wrong.
Although we frankly believe that even further narrowing of the
insanity defense would be desirable, to look only to the issue of
mens rea, the approach set out in the President's crime bill would
represent a major improvement over existing law, and it is an ap-
proach that we believe can command overwhelming support in the
Congress.
I note that, on this issue, the administration last year had pro-
posed returning just to the mens rea approach. In other words, re-
stricting the insanity defense, just to situations where a person
could establish, or the Government could not establish, that the
person knew what he was doing or intended the consequences of
his act.
As a result, really, of consultations with the chairman, with
other members of this committee, and our assessment of what is
realistic, as opposed to what we would absolutely prefer, we have
modified our position to one which we think is a more realistic one,
and one that was supported by this — by a number of members of
this committee last year, and is now essentially supported by the
American Bar Association and the American Psychiatric Associ-
ation.
16
I offer that as an example of how we are more than wilHng to
compromise, if we can achieve improvements over current law,
even if we cannot get exactly or precisely what it is that we would
prefer in the first instance.
One of the provisions of the President's crime bill that would be
of greatest benefit to State and local law enforcement authorities is
title VI, which would limit Federal judicial interference in State
court adjudications pursuant to the Federal habeas corpus statutes.
The abuse of Federal collateral remedies has been a a growing
concern in recent years among State and Federal officials responsi-
ble for the prosecution of crime. The concern has been equally
great among State and Federal judges.
Indeed, a majority of the Justices of the Supreme Court have
strongly criticized the current operation of Federal habeas corpus,
and have called for basic reforms.
Under the present system, there can never be an end to the liti-
gation of a criminal case, since habeas corpus is available without
limitation of time, and with no limit on repetitive filings by the
same prisoner.
Criminal justice resources of the State and Federal governments
are squandered in litigating the redundant and frivolous petitions
of State and Federal prisoners. The possibility of structuring State
processes through delay and repetitive applications for Federal
habeas corpus has virtually nullified State capital punishment
laws.
Title VI incorporates a variety of reforms responding to these
abuses. It would establish a 1-year time limit on habeas corpus ap-
plications, normally running from the end of the State criminal
process. This would provide a means for controlling the abuses of
repetitive filing, and the filing of petitions years, or even decades,
after the normal conclusion of a criminal case.
Title VI would also establish a general rule barring claims which
were not raised before the State court where the State has pro-
vided an opportunity to raise such claims that would satisfy the re-
quirements of Federal laws. Under this rule, a claim could be
raised on a habeas corpus if an attorney's failure to raise it, in
State proceedings, amounted to constitutionally ineffective assist-
ance of counsel. But minor oversights and errors by counsel, which
even the ablest attorneys will sometimes make, would not be
grounds for reopening a criminal case in Federal court after the
State process is completed.
A further reform of title VI is according deference in habeas
corpus proceedings to the result of full and fair State adjudications.
The requirement of a full and fair adjudication would generally be
satisfied if the State determination of a petitioner's claim was rea-
sonable, and was arrived at by procedures consistent with due proc-
ess.
The current rules, by contrast, mandate redetermination of all
claims, regardless of how often, and how adequately they have
been considered by the State courts. The effect of the reform
should be a relatively quick and easy decision in habeas petitions
of most claims that have previously been decided by the State
courts.
17
Finally, title VI would make comparable reforms in the collater-
al remedies for Federal prisoners, and affect various technical im-
provements in habeas corpus procedures.
The Federal surplus property amendments in title IX of the bill
would be of great assistance in turning over Federal property to
State and local jurisdictions for use as correctional facilities, some-
thing that we have done, to the extent that we can, laboring under
the burdens of the present law, and have actually been very effec-
tive in assisting many of the States, or at least some of the States,
the ones that have participated so far, and quickly, at least dealing
with the overcrowding in State prison facilities.
In the past decade, the State prison population has almost dou-
bled, from 204,000 in 1973 to over 400,000 today. Because prison
construction is so expensive, ranging from $30,000 to $90,000 per
bed, State governments are severely strained. More than half of
our State correctional systems are under Federal court orders
stemming from overcrowding.
In an effort to assist the States in dealing with this problem, the
Attorney General has established a clearinghouse to facilitate the
identification and transfer to States of surplus Federal properties
suitable for prison use. Four States have acquired property under
this program.
Under current law, however, States must either lease or pur-
chase the property at its fair market value. This is a financial
burden which many States cannot bear.
Under title IX of the President's crime bill, surplus Federal prop-
erty could be donated to the States at no cost.
As there are surplus properties available which could, at mini-
mal cost, be converted to prison use, enactment of this proposal
would provide urgently needed relief to States, and reduce the
problem of prison overcrowding.
The final provision that I would like to touch on, and then turn
it over to Assistant Attorney General Lowell Jensen to offer fur-
ther comments on, is the sentencing reform proposals in the bill.
Criminal sentences are imposed at the end of a process that is
designed to assure fairness to defendants and to the public. Ideally,
sentences represent society's statement of the relative seriousness
of the defendant's criminal conduct, and will deter criminal con-
duct by others.
Unfortunately, despite everyone's best efforts, sentences ulti-
mately fail to achieve these goals. This is true in large measure be-
cause the system fails not only to provide appropriate sentences in
many individual cases, but even fails to provide a mechanism capa-
ble of consistently achieving such results.
Current Federal law provides a Federal judge who is sentencing
someone, who has no special competence in knowing what sentence
will reflect society's values, discretion to impose a sentence pursu-
ant to numerous sentencing options, with almost no guidance as to
how to choose among those options.
Federal penal statutes specify only the maximum sentence that
may be imposed for a particular offense, and this only indicates the
congressional view of the appropriate sentence for the most serious
case under that statute. Federal law also provides various sentenc-
ing alternatives, such as probation and restitution, and various spe-
18
cialized sentencing statutes, such as those available for youthful of-
fenders, or drug addicts.
But Federal law gives absolutely no guidance as to when or how
these statutes should be used. As a result, judges are left to impose
sentences according to their own notions of the purposes for sen-
tencing. They are not required to state their reasons for choosing a
particular sentence, and many, in fact most, do not. Sentences are
reviewable only for illegality, or for constitutional violation.
A sentence that is substantially out of proportion to those in sim-
ilar cases is not otherwise subject to challenge. It is unreviewable.
Current imprisonment statutes were enacted at a time when the
criminal justice system utilized a medical model. A defendant sen-
tenced to prison was sentenced to a term substantially longer than
the judge thought would be needed to rehabilitate or cure the de-
fendant.
Parole authorities would periodically review the defendant's
case, to determine whether he had been rehabilitated, and could be
released. This theory ignores the fact that there are other purposes
of prison sentences, such as just punishment and deterrence for
which definite sentences must be imposed.
In addition, the theory has proved to be unsound because behav-
ioral scientists have concluded, in recent years, that there is no re-
liable means of inducing rehabilitation, and no way to tell from a
prisoner's behavior in prison, or before a parole board, whether or
when he has become rehabilitated. Decisions as to rehabilitation
have resulted in numerous tragedies all throughout this country.
Consequently, the basic reasons for an indeterminate sentence,
and thus, for the existence of parole boards has disappeared. The
Federal Parole Commission today acknowledges that it cannot tell
when a prisoner has become rehabilitated. It now sets release dates
for most prisoners under its own guidelines soon after they begin
their prison term, and based entirely on information known at the
time of sentencing. The release date may be substantially different
from the prison term, and may be set to achieve entirely different
goals from those of the sentencing judge. It does not, however, re-
flect in any way an assessment of the person's behavior in prison,
or of the quality or level of the person's rehabilitation.
It is, in essence, a resentencing of the person who has been sen-
tenced by the judge already, and often in a way that conflicts with
what the judge did in the first place.
The almost inevitable result of the problems of current law is
considerable sentencing disparity. This disparity has been docu-
mented in numerous studies, including a recent study for the De-
partment of Justice, in which 208 Federal judges agreed, in only 3
of 16 hypothetical cases, on whether to sentence a defendant to
prison at all. The study found that 21 percent of the variation in
sentences was due to the tendencies of some judges to sentence
more harshly, or more leniently than others, and that even more
variation was due to differences in the weight in which individual
judges gave particular offenses or offender characteristics.
In the last decade a concensus has developed among those of dif-
ferent political views that the current Federal sentencing system is
riddled with serious shortcomings. More recently, substantial sup-
port has developed for an approach along the lines of title II in this
19
proposed bill, a system that couples sentencing guidelines, and pro-
vides for determinate sentences. This title is substantially identical
to the legislation approved several times by the Senate Judiciary
Committee, and passed by the Senate most recently in S. 2572, in
the last Congress.
The provisions are also similar to the Minnesota system, the only
operating State system that is substantially similar to the proposal
contained in title II, which the National Academy of Sciences has
recently reported to be the most successful sentencing reform
system.
If I may, Mr. Chairman, I would turn it over now to Assistant
Attorney General Jensen, who will discuss the sentencing proposal,
or continue the discussion of the sentencing proposal, and move on
to some of the other provisions.
The Chairman. Mr. Jensen, we would be glad to hear from you.
STATEMENT OF LOWELL JENSEN
Mr. Jensen. Thank you, Mr. Chairman and members of the sub-
committee.
I would like to follow up on the discussion of the sentencing in
title II, to describe a little bit just exactly what title II would sug-
gest in terms of revision of Federal sentencing laws.
It would, for the first time, give legislative recognition to the pur-
poses of sentencing, including just punishment, deterrence, protec-
tion of the public, and rehabilitation. A judge would impose sen-
tence after considering these purposes, and sentencing guidelines,
promulgated by a commission in the judicial branch that would
recommend an appropriate kind of range of sentence for each com-
bination of offense and offender characteristics. The judge would
impose sentence in accordance with the guidelines, unless he found
that a factor that should affect the sentence was not adequately
considered in the guidelines.
If the judge imposed sentence outside the guidelines, he would
have to state specific reasons for doing so, A sentence above the
guidelines would be subject to appellate review at the request of
the defendant, and a sentence below the guidelines would be sub-
ject to review at the request of the Government, acting on behalf of
the public.
A prison term imposed by the judge would represent the actual
time to be served, less a small amount of credit for compliance
with prison rules. The Parole Commission would be abolished, and
prison sentences imposed by judges would no longer be artificially
inflated, because of the parole system.
If the sentencing judge thought that a defendant would need
street supervision following his prison term, he could impose a
term of supervised release to follow the prison term.
Title II provides numerous advantages over current law. The
most important is that it provides a sentencing mechanism that
will assure fair sentences, and the appearance of fairness. Sentenc-
ing guidelines will assure that defendants will receive sentences
that are fair, as compared to sentences for all other offenders. De-
terminate sentencing will assure that everyone will know at the
20
time of sentencing exactly what the sentence is, and why it was im-
posed.
Finally, appellate review of sentences will assure the develop-
ment of a balanced body of case law concerning the appropriate-
ness of both unusually high and unusually low sentences.
Let me turn to one of the other titles, a major portion of the leg-
islation we are discussing, and that has to do with the exclusionary
rule.
In title III of the bill we set out a proposed modification of the
fourth amendment exclusionary rule, to restrain it to its proper
rule, which is precisely that of deterring unlawful police conduct.
Our proposal is identical to that submitted by the administration
and introduced by Chairman Thurmond as S. 2231 in the 97th Con-
gress. Our proposal is, simply, that the exclusionary rule would not
be applied in cases in which the law enforcement officers who con-
ducted the search acted in a reasonable good faith belief that their
actions were lawful.
When first imposed by the Supreme Court in 1914, the exclusion-
ary rule was justified both as a means of deterring unlawful police
conduct and on a judicial integrity ground, which sought to prevent
courts from being accomplices in willful constitutional violations.
Over time, it has become clear that the deterrence rationale is the
foremost reason behind the rule.
There are any number of cases that set this out. They start with
the cases that dealt with the retroactivity of the rule itself. And all
those cases have now clearly established that the rule will be in-
voked to protect fourth amendment rights, only when to do so
would effectively deter unlawful conduct by police or by law en-
forcement authorities.
Although the Court recognizes deterrence as the rule's para-
mount purpose, it has not limited the rule only to those situations
in which the law enforcement officer's conduct is susceptible to
being deterred. For example, courts continue to suppress evidence
seized by law enforcement officers during searches conducted pur-
suant to duly authorized warrants which have been obtained in
completely good faith but later found defective by an appellate
court.
When a warrant is obtained in good faith from one court but is
subsequently ruled defective by another court, there is a disagree-
ment between judges — there is no police misconduct involved. The
police have simply carried out their duties. They have gone to the
court and presented their evidence, completely with full disclosure.
The court has made a decision that probable cause exists for a war-
rant.
In those circumstances, there is no police misconduct, whatso-
ever, and the exclusionary rule, when it is applied in those cases,
simply fails to comport with its rationale.
Moreover, when the officers carry out the orders of the court,
once a warrant is issued, suppression of evidence in such an in-
stance does not serve the purpose of the exclusionary rule.
In fact, it only serves to damage both a community's perception
of justice and the morale of law enforcement officers who have fol-
lowed the rules only to have the evidence suppressed on the prem-
21
ise that they have violated the Constitution. Proper police conduct
is thereby falsely labeled as illegal.
The deterrent purpose of the exclusionary rule also is not served
when courts apply the rule to situations where the appellate court
cases are not at all clear, where the law is thoroughly confused, or
even in -situations where the cases are in flat contradiction. Police
often are confronted with the question of whether to conduct a
warrantless search in the field when the circumstances they are
facing are not covered by existing case law.
For example, we could consider the facts in two recent cases de-
cided by the Supreme Court, Robbins' v. California, and New York
V. Belton. Both of these cases were decided by the Court on the
same day in the 1981 term. In both cases, police officers lawfully
stopped a car, smelled burnt marihuana, discovered marihuana in
the passenger compartment of the car, and lawfully arrested the
occupants. Thereafter, in Robbins the officer found two packages
wrapped in green opaque paper in the recessed rear compartment
of the car, opened them without a warrant, and found 30 pounds of
marihuana. In Belton, the officer found a jacket in the passenger
compartment, unzipped the packet without a warrant, and found a
quantity of cocaine.
In decisions based largely on cases that had not even been decid-
ed at the time of the two searches were actually conducted, the
Court split as follows in now considering the cases that have come
from New York and California: three Justices of the Supreme
Court decided that both searches were legal; three Justices decided
that both were illegal; and three Justices decided the ultimate deci-
sion that Robbins was illegal and Belton was legal.
The interesting result of that is that both New York and Califor-
nia were found to be wrong. They were both reversed. So the Su-
preme Court, on the basis of the decision, simply decided that the
cases as they come up through the State courts have been decided
once again by the judicial disagreement to be a different state of
law.
Moreover, the Court did not give the police any real guidance to
understand the law of warrantless searches of automobiles, and
less than a year later the issue was again before the Court in the
United States v. Ross.
In that case, the Court reconsidered the holding of Robbins, and
it was repudiated. So what we have was, after we had gone through
this, we now have a state of law that was known but we had gone
through a process where Robbins' and Belton's cases had been af-
fected by a state of law which was unknown.
It was probably small consolation for the police involved in the
search in Robbins to know that their view of the law in this area
was ultimately upheld by the Supreme Court in another case since
the defendant in Robbins went free because the evidence was ex-
cluded. To say the suppression of reliable, trustworthy evidence in
this type of case helps to deter police misconduct is absurd, and the
acquittal of the defendant is a totally unjustified windfall.
Our proposal in title III setting forth a reasonable, good faith ex-
ception to the exclusionary rule recognizes that conduct undertak-
en in reasonable good faith is not succeptible of being deterred. It
is based on the en banc opinion of the Fifth Circuit in United
22
States V. Williams, which adopted a reasonable good faith excep-
tion in that circuit after an exhaustive opinion which considered
all relevant Supreme Court cases. Such legislation was recommend-
ed by the Attorney General's Task Force on Violent Crime after
hearing the recommendations of legal scholars on many different
points of view. We are confident it is constitutional.
Moreover, a legislative modification of the rule is long overdue,
having first been suggested 12 years ago by the Chief Justice in his
dissent in the famous Bivens case.
Let me turn to another portion of the legislation, that which
deals with the reinstitution of capital punishment.
The establishment of constitutional procedures for the imposition
of capital punishment is the purpose of title X of the administra-
tion's crime bill. For more than a decade, Federal statutes author-
izing the death penalty for offenses of homicide, espionage, and
treason have been unenforceable because they fail to provide, as re-
quired under the Supreme Court's landmark decision in Furman v.
Georgia, a set of legislated guidelines to narrow the sentencer's dis-
cretion in determining whether the death penalty is justified in a
particular case. In a series of decisions after Furman, the Court has
further refined the constitutional requisites of a statute author-
izing imposition of the death sentence. At the same time, however,
the Court has stressed that if procedural requirements designed to
protect against arbitrainess and disproportionality are met, capital
punishment is a legitimate, constitutional sanction for the most
grave offenses.
In the 10 years since the Furman decision, two-thirds of the
States have enacted laws to restore the death penalty as an availa-
ble sanction for the most serious crimes committed under particu-
larly reprehensible circumstances, but the Congress has failed to
enact similar legislation to reinstitute capital punishment at the
Federal level. Of course, legislation to provide constitutional proce-
dures for imposition of the death penalty has been considered by
the Congress on several occasions.
In the last Congress, the Judiciary Committee held exhaustive
hearings on capital punishment and devoted considerable effort to
the development of a death penalty statute that would comport
with the decisions of the Supreme Court. The product of this effort,
S. 114, is the basis for the death penalty provisions of our bill.
Appearing before the Judiciary Committee during its hearings on
S. 114 was one of my first tasks as an Assistant Attorney General.
As I stated in my testimony at that time, the death penalty is not a
pleasant subject for either a legislator or an official charged with
enforcement of our criminal laws to contemplate. But the fact that
the death penalty is an unpleasant and controversial issue is no
justification for continuing to avoid enactment of procedures to
permit its restoration, for, under certain circumstances, it is a war-
ranted sanction for a limited number of Federal offenses — offenses
which involve the brutal taking of innocent lives or which threaten
the very security of our Nation.
In our view, the death penalty is warranted for two principal
reasons. First, while studies attempting to assess the deterrent
effect of capital punishment have reached conflicting results, we
believe common sense supports the conclusion that the death pen-
23
alty can operate as a deterrent for certain crimes involving preme-
ditation and calculation, and thus it will save the lives of persons
who would otherwise become the permanent and irretrievable vic-
tims of crime.
Second, society does have a right — and the Supreme Court has
confirmed that right — to exact a just and proportionate punish-
ment on those who deliberately flout the most basic requirements
of its laws; and there are some offenses which are so harmful and
so reprehensible that no other penalty, not even life imprisonment
without the possibility of parole, would represent an adequate re-
sponse to the defendant's conduct.
As the Supreme Court has stressed in its death penalty decisions,
the severity of the sanction requires that it be imposed only in very
limited circumstances and pursuant to stringent procedural safe-
guards. The death penalty provisions of our bill meet these require-
ments: the death penalty may be imposed only pursuant to a sepa-
rate sentencing hearing and the Government must give advance
notice to the defendant of its intent to seek the death penalty; ag-
gravating and mitigating factors bearing on the justifiability of the
death penalty in a particular case are specifically enumerated, but
the defendant may raise any additional issue in mitigation; the
Government's burden of proof with respect to aggravating factors
is more stringent than that which is placed on the defendant in his
proof of mitigating circumstances; special findings and jury una-
nimity are required at all stages, special jury instructions are man-
dated to guard against the influence of prejudice; and the stand-
ards and procedures for appeal of a death sentence are specified.
In our view, these procedures for determining whether the sen-
tence of death is justified in a particular case fully comport with
the constitutional teachings of the Supreme Court over the last
decade. We believe that in the carefully delineated circumstances
to which the death penalty provisions of our bill would apply, the
opportunity for imposition of capital punishment should be re-
stored. A criminal justice system limited to lesser sanctions is lack-
ing in adequate deterrence and fails to meet society's need to exact
a just and proportionate punishment for the most grave and repre-
hensible of crimes.
Turning to another portion of the legislation, title VII. This deals
with an area of amendments to drug laws. There has been a great
deal of discussion, activity, the Attorney General alluded to the im-
portance of this area, and there are a number of issues that are
appropriate here. They deal across the whole range of sentencing.
Assistant Secretary Walker will deal with forfeiture, another very
important area.
This particular area in title VII deals with providing a more ra-
tionale penalty structure for the major drug trafficking offenses.
Trafficking in illicit drugs is one of the most serious crime prob-
lems facing the country, yet the present penalties for major drug
offenses are often inconsistent or inadequate. This title primarily
focuses on three major problems with current drug penalties.
First, with the exception of offenses, except for marihuana, and
with that as an exception, the severity of current drug penalties is
determined exclusively by the nature of the controlled substance
involved. While it is appropriate that the relative dangerousness of
24
a particular drug should have a bearing on the penalty for its im-
portation or distribution, another important factor is the amount of
the drug involved. This bill takes that factor into account by pro-
viding more severe penalties for offenses involving larger quanti-
ties of certain drugs than for offenses involving lesser quantities.
The second problem addressed by this title is the current fine
levels for major drug offenses. Drug trafficking is incredibly, enor-
mously absurdly profitable. Yet current fine levels are, in relation
to the illicit profits generated, woefully inadequate. It is not un-
common for a major drug transaction to produce profits in the hun-
dreds of thousands of dollars. However, with the exception of the
most recently enacted penalty for distribution of large amounts of
marihuana, the maximum fine that may be imposed is $25,000.
This title provides more realistic fine levels that can serve as ap-
propriate punishments for, and deterrents to, these tremendously
lucrative crimes.
A third problem addressed by this title is the disparate sentenc-
ing for offenses involving schedule I and II substances; schedule I
deals with narcotic drugs, opiates, and cocaine, and they are sub-
ject to greater penalties than offenses involving schedule II nonnar-
cotic substances. This penalty structure is at odds with the fact
that title II controlled substances include such extremely danger-
ous drugs as PCP, LSD, methamphetamines, methaqualone, and
Federal prosecutions involving these drugs typically involve huge
amounts of illicit income and sophisticated organizations.
Title VII would correct these penalty problems in the areas of
both drug trafficking and importation /exportation offenses.
Title VII also contains numerous amendments in the area of di-
version control aimed at enhancing our diversion control capabili-
ties but, where appropriate, relaxing certain restrictions. For exam-
ple, the bill amends the Controlled Substance Act to establish a
new emergency authority to place an uncontrolled substance under
temporary controls which provide for registration, recordkeeping,
and criminal penalties of up to five years. This would permit DEA
to deal with rapidly developing situations in which a new or uncon-
trolled drug suddenly becomes a public danger.
Title VII also amends the registration procedures of current law.
For example, the bill would greatly alter the standards required for
the registration of practitioners by enabling DEA to consider rec-
ommendations of the State licensing board, special limitations, and
applicants, prior conviction record and other related matters.
The diversion control amendments also provide special grant au-
thority and authorize resources for the expansion of DEA's State
assistance program to help State and local governments suppress
the diversion of controlled substances. DEA's program to assist
States in establishing diversion investigation units has proven suc-
cessful; however, because of lack of explicit authority and neces-
sary resources. States have been hindered in establishing such pro-
grams. The new authority will respond to this problem.
We turn finally to a portion of the legislation, title VIII, which
deals with the Justice Assistance Act. This is an integral part of
our comprehensive crime program, and it is a proposal to provide
assistance to State and local law enforcement.
25
Although there is much to be done to strengthen Federal law en-
forcement, and this is the major focus of the administration's bill,
the primary responsibility for enforcement of the criminal laws
and for crime prevention in this country and the financial burden
that goes with that responsibility, falls on State and local govern-
ments. Providing local law enforcement with additional resources,
particularly with respect to the areas of violent crime, repeat of-
fenders, victim and witness assistance, and crime prevention, is the
purpose of the Justice Assistance Act. This title of our bill is the
product of discussions with members of the House and Senate Judi-
ciary Committees, and closely parallels similar provisions approved
by the House and Senate in the last Congress.
The current law's program for providing financial assistance to
State and local law enforcement — LEAA — has been phased out.
The history of LEAA, however, provides some important lessons. It
shows, for example, that expenditures of money — $8 billion over 12
years — is not the answer to the crime problem and that a program
whose priorities are unclear and constantly shifting results in a
minimal payoff. On the other hand, we have also learned that Fed-
eral seed money for carefully selected programs does work and that
certain of these projects can have a significant impact on our crimi-
nal justice system.
Our proposed Justice Assistance Act reflects an appreciation of
these issues. It focuses Federal financial assistance on a selected
group of particularly important criminal justice issues where the
application of additional funds will be most productive. It strips
away layers of bureaucratic redtape required under the earlier pro-
gram and consolidates the management of the program in a single
unit of the Department of Justice. Moreover, it continues the pres-
ently authorized justice research and statistical programs and in-
sures coordination between the products of research and the proj-
ects implemented under the financial assistance provisions.
The proposal would establish within the Department of Justice
an Office of Justice Assistance, headed by an Assistant Attorney
General. Advising the Assistant Attorney General would be a
single advisory board, replacing two current advisory groups.
Within the Office of Justice Assistance would be three separate
units — the existing Bureau of Justice Statistics and the National
Institute of Justice, and a new Bureau of Justice Programs, which
would administer the proposed technical and financial assistance
programs.
Financial assistance to local law enforcement would be provided
through a combination of block and discretionary grant funds. The
block grant funding will provide each State with an allocation
based on its relative population, and a share of the funds are to be
passed on to local governments. There is a matching requirement
for the Federal funds, and Federal assistance for individual proj-
ects would be limited to no more than 3 years.
Moreover, the use of the funds is limited to specific types of proj-
ects which have a demonstrated track record of success. The other
component of the financial assistance package, discretionary funds,
would focus on training and technical assistance, multijurisdic-
tional and national programs, and demonstration projects to test
new anticrime ideas.
25-694 0-84-3
26
Also included in title VII is a provision which would permit
emergency law enforcement assistance. Under this provision, the
Attorney General could, pursuant to a request from a State Gover-
nor, designate a "law enforcement emergency jurisdiction," when
an uncommon situation, such as the massive child murder investi-
gations in Atlanta, develops and local resources are not adequate to
meet the emergency. In these cases, emergency assistance in the
form of equipment, training, intelligence information, and techni-
cal expertise, as well as emergency funds, can be provided by Fed-
eral authorities.
Finally, this portion of the administration's crime bill sets forth
certain amendments to improve the current public safety officers'
benefit program and the prison industries certification authority.
As Mr. Giuliani indicated previously, I would now like to, Mr.
Chairman, turn this over to Assistant Secretary Walker for a de-
scription and discussion of some of the other areas of the title.
Senator Biden. Mr. Chairman, may I ask a question?
The Chairman. Senator Biden.
Senator Biden. Our plate is being filled with so much informa-
tion here. There are a number of questions I have, and I am sure
others have. Would it be possible for us to take 15 minutes here to
ask questions of those who have already spoken, before we go on to
the next witness?
Is that a good idea?
The Chairman. Would you like to do that?
Senator Specter. I would, too. Senator.
The Chairman. All right, we will take 10 minutes apiece and ask
questions, and then we will go on to Mr. Walker.
Mr. Giuliani, the bail provisions in last year's bill contained a re-
buttal presumption that no condition of release would insure ap-
pearance at trial, or safety of the community with respect to a de-
fendant charged with a serious narcotic offense, or the use of a fire-
arm to commit a felony. This presumption is not included in S. 829
bail procedures.
Would you elaborate on the reasons for not including this provi-
sion in the administration's proposal?
Mr. Giuliani. I am told that the reasons were that it is probably
not necessary, since a prosecutor would be able to make those argu-
ments to a judge, and so long as the judge has discretion and the
ability to deny bail in situations involving drug dealers, that is suf-
ficient, and also there was some concern that there might be an
issue of unequal treatment raised if it were done in certain catego-
ries of cases or in another.
Personally, that is certainly something that I think this commit-
tee should consider restoring in an amendment.
Senator Biden. It is obvious that you are leaving the Justice De-
partment.
Mr. Giuliani. That is right. [Laughter.]
The Chairman. Mr. Giuliani, with respect to the sentencing pro-
visions, you note that Minnesota has adopted a sentencing system
similar to the one proposed in this bill.
Could you tell us how well it is working?
Mr. Giuliani. Well, Mr. Chairman, I am told, and the only study
done is a very quick and preliminary study done by the National
27
Academy of Sciences, that they believe that it is working very, very
well, and that it has not led to — one of the criticisms is that when
you go to determinative sentencing, all of a sudden the sentences
become astronomically much higher than they were before, and in
fact, that has not been the case in Minnesota. The sentences have
become more uniform, but not outrageously higher or lower, and
what we are seeking, as you know, in the sentencing reform, is not
some major change in sentences given for a particular crime, but
more uniformity in the way Federal judges sentence throughout.
So I do not say that this is a definitive study. I believe they only
studied it for a period of 7 or 8 months. But to the extent that
there are any conclusions that can be drawn, they are all very posi-
tive.
The Chairman. Mr. Giuliani, S. 829, as well as previous sentenc-
ing bills, provides for a system of guidelines to be used by the court
in setting a sentence, with appellate review of a lenient sentence
below the appropriate guideline by the Government. Everyone
seems to agree that the defendant should be able to appeal his sen-
tence above the appropriate guidelines, while at least some oppose
Government appeal.
How important is it to the operation of this system that the Gov-
ernment be permitted to appeal the sentence?
Mr. GiuuANi. Mr. Chairman, I believe it is probably the single
most important provision in the sentencing reform, Government
appeal and defendant appeal of sentences, because it is the only
way that over a period of time we are going to develop a body of
law and a group of opinions that instruct a judge on how to exer-
cise discretion.
Sentencing commissions can set guidelines, and as you know, Mr.
Chairman, it will fit some cases, and they are not going to be able
to anticipate every case.
The real value to the judicial system would be if a Federal judge,
at the time of sentence, when he had a question about how much
he should weigh one factor or another, had a body of law that he
could go to and read and apply, as he does in deciding every other
question. And therefore, I think that appellate review of sentences,
both the Government appeal and the defendant appeal, is really
crucial to obtaining the kind of rough uniformity that we all want.
The Chairman. Mr. Giuliani, if the sentencing system proposed
by this bill is adopted, do you expect a drastic increase in prison
population, and if so, why?
By the way, I note the presence here of Mr. Norman Carlson, the
Director of the Bureau of Prisons. I imagine he would be interested
in that, too.
Mr. Giuliani. Well, I will tell Norm that I predict that there will
be an increase, not so much in the number of people going to
prison, but possibly to some extent on the length of time they
spend in prison. I would not categorize it as a drastic increase.
There has been an increase over the last 2 years in the number of
people going to prison, and in our budget we have been predicting
an increase, based upon increased enforcement, and also the possi-
bility that this bill will become law.
But I do not think it will be a drastic increase, and it would be
more in the nature of people would be spending more time in
28
prison, as opposed to necessarily more people would be going to
prison.
The Chairman. There probably would be some deterrent effect if
this package is passed, would there not?
In other words, people would see that they have to serve their
sentence, and they may be more careful about committing crime,
but if they do commit it, then they will have a longer time to serve.
In short, is that it?
Mr. Giuliani. That is absolutely correct, Mr. Chairman.
The Chairman. Now, Mr. Jensen, could I ask you a question on
the exclusionary rule?
The administration proposal would eliminate the application of
the exclusionary rule to evidence seized by a police officer acting
with an erroneous but reasonable good faith belief that his conduct
was not in violation of the fourth amendment.
Why does the administration believe this approach is superior to
simply abolishing the exclusionary rule, and providing appropriate
civil and disciplinary sanctions to deter unlawful police conduct?
Mr. Jensen. Senator Thurmond, as I indicated before, the pro-
posal that we have in the bill comes directly from the recommenda-
tion of the Attorney General's Task Force on Violent Crime. They
considered all those issues as to the most appropriate response. It
was their recommendation that this is the way in which we should
seek legislation.
Let me add that there is some perception that this is the realistic
way to approach the possibility of a legislative modification of the
exclusionary rule. In addition to that, it is premised on the notion
that there is already a case. United States v. Williams, which I
cited, which supports, in very direct fashion, the constitutionality
of that kind of a legislative notion, and therefore gives it very
direct constitutional support.
In its final analysis we were also satisfied that the basis that I
spoke to in terms of the application of the exclusionary rule would
in fact be eliminated by a reasonable good faith statement of the
rule.
The Chairman. Mr. Jensen, S. 829, as well as my bill on capital
punishment, provides a death penalty for an attempt to kill the
President. So we will have it in this record, would you comment
briefly on the constitutionality of such a provision?
Mr. Jensen. Yes, sir. The constitutionality issue deals with the
question of whether or not a death penalty would be constitutional-
ly permissible in a situation where there was no actual death of a
victim. That has been raised in several U.S. Supreme Court cases.
It has never been completely resolved, or specifically resolved.
If you look at the whole history of the death penalty, there has
always been a death penalty in the Federal law, for any number of
cases where there have been no underlying homicide. Espionage
and treason come to mind. That is also in the bill, and we are satis-
fied that that is a constitutional application.
We specifically looked at the issue of any attempted assassina-
tion, as to whether or not it would be, in the opinion of the Depart-
ment of Justice, that would meet constitutional muster, and we are
satisfied that it would meet constitutional muster, Mr. Chairman.
The Chairman. I think my 10 minutes is about up now.
29
Senator Biden.
Senator Biden. Thank you very much.
Mr. Giuliani, you have not been releasing any reports to the
GAO lately, have you? [Laughter.]
Mr. Giuliani. No, Senator.
Senator Biden. Good. There is one coming out. I wish you were
going to be here when it is released.
Mr. Giuliani, I wish you luck in your new position as U.S. attor-
ney for the Southern District of New York. Actually, you have
been there before, have you not?
Mr. Giuliani. Yes, sir.
Senator Biden. Going back home. You have got your hands full.
I might say, I think you are going to be missed — your outbursts
against me will not be missed, but you will be missed.
I am a little concerned about the questions relating to the task
forces, because I viewed you as one of the linchpins in seeing that
it worked. I realize that any good program can overcome the loss of
good people, but I do want to discuss for the record what will
happen in your going, and I understand your assistant is also going
to be going, but I will get to that in a minute.
If I may, with regard to the exclusionary rule. Am I to under-
stand that under the proposed exception, evidence would not be ex-
cluded if a law enforcement official was unaware of the current
fourth amendment law that applied to a particular situation?
Mr. Jensen. Excuse me, Senator, that is really not correct. I
think that is an important point, is that it has been asserted, on
some occasions, that this would place a premium on police igno-
rance, and that is a very difficult problem, and one which we
would not want to see in the legislative structure, or legal struc-
ture at all. It does not do that.
The good faith test is both a subjective and an objective test. It
requires a subjective belief on the part of the officer that it is un-
lawful, but if the officer is operating the situation where he is
simply unaware of the rules that apply to the search, then it does
not meet the objective standards of the good faith exception. So it
has to be a reasonable good faith belief.
It is not reasonable if it does not meet an objective test. Then it
would not fall within the exception.
Senator Biden. It is not reasonable if he does not understand the
fourth amendment.
Mr. Jensen. No, no. The test of whether or not it is reasonable is
an objective test. It does not depend on his objective feeling, what-
soever. It is a test the court imposes on the search itself. The offi-
cer explains the search, what he did, what his subjective belief was,
and it is tested then by the law.
If the law is clear that his conduct was in violation of the exist-
ing standards, then that is a bad search, regardless of his state of
awareness.
If on the other hand you are in a situation where there is no law
for him to follow, then it is objectively valid that his subjective
belief could be acted upon, then reasonable good faith would permit
the search to be all right.
Senator Biden. Well, as a practical matter, the subjective belief
really is not going to impact at all upon the court's judgment, be-
30
cause the court applies what they beUeve to be an objective stand-
ard as to what is necessary to constitute protection, does it not?
Mr. Jensen. That is what we do in any number of situations,
where courts look to what is the objective state of the law. We do
that in all kinds of areas of the law. This simply says that there is
no reason why we should not do it in the fourth amendment also,
and if we find a situation where the officer has in fact acted in
such a way that it comports with the fourth amendment in an ob-
jective fashion, there is no reason to suppress the evidence.
Senator Biden. Without pursuing that in the little time that I
have, let me ask you about the Gates case now. It is before the Su-
preme Court, and involves a good faith exception to the exclusion-
ary rule.
In view of the potential constitutional issues raised by statutorily
modifying that rule, would it not be wise to postpone legislative
action until the Court judgment?
After all, the Court may in fact rule in a way that solves the
problem.
Mr. Jensen. It is potentially possible in the Gates decision that
the Court would so rule. However, it is not necessary — it is not a
necessary decision that will either have a decision by the Court
that there will be a good faith exception, or that there will not be.
The Gates case involves a search by search warrant. It involves a
case that in effect I alluded to as to the kind of problem situation
where the officers went to a magistrate, they presented all the evi-
dence they had, they made a complete disclosure to the Court, and
a search warrant was issued. Pursuant to that search warrant they
then went and completed a successful search.
A later Court decision said, well, we do not agree with the first
judge. We think that there was not any probable cause. So if you
look at the case, it is on appeal, on a number of levels. One is
whether or not the decision of probable cause is correct. You could
have a decision by the Court that only deals with probable cause.
Senator Biden. I agree with that. I acknowledge that there is a
prospect that the Court will not solve the issue in its ruling in
Gates, but there is also a possibility that it will. It seems to me that
when we can avoid raising constitutional questions that the courts
themselves may resolve, it might be wiser to wait. We are not talk-
ing about an indefinite wait here, we are talking about knowing
the result this year.
Would you object to that?
Mr. Jensen. No, I would not have any objection if the Court were
to rule in Illinois v. Gates, in a fashion that would comport with
what we are suggesting, certainly.
Senator Biden. No, I mean would you object to us waiting.
Mr. Jensen. No, I think the time factor actually comes about in
such a fashion that we are asking consideration of this bill, we
have done that all the way through, as a part of the crime package.
We think that it is appropriate for a statement by the legislature,
and in due course it may very well be that the Gates decision is
rendered while that consideration is on.
I think that in the normal course one would expect the Gates de-
cision will be within another month or so, so that I think we will
have a time factor that overlaps.
31
Senator Biden. In the habeas corpus provisions, the phrase, "full
and fair adjudication" is not defined in the bill. Proponents of the
bill have indicated the phrase is meant to be interpretted in terms
of reasonableness.
How do you think the phrase should be defined, and do you
think it should be defined in the statute itself?
Mr. Giuliani. Well, cases have defined it already to the extent
that courts deal with determining whether there has been a com-
plete hearing in the State proceeding. It is intended, the purpose of
it is intended to not relitigate in the Federal court something that
has been fully and effectively dealt with in the State courts.
I would have no objection to a definition. I do not really believe
one is necessary, and it is something that is going to have to be
worked out by courts in interpreting the statute afterward. But I
certainly would have no objection to either our trying to develop a
proposed further definition of that, or if the committee
Senator Biden. What about the situation where a Federal judge
found the State adjudication to be reasonable in a technical legal
sense, yet believed that the State decision was substantively incor-
rect? What happens in a case like that?
Mr. Giuliani. Where he believes that there has been a full and
fair?
Senator Biden. Where he believes there has been a full adjudica-
tion, and that the adjudication was reasonable in a technical legal
sense, but he believes that the State decision was in fact incorrect.
Mr. Giuliani. I see. Senator, I think that would really depend on
the kind of question that was involved. In one case, if it was a full
hearing, but it was not in the view of this particular judge com-
plete enough, or a perfect hearing, that should not be grounds for
reopening a criminal proceeding, because this particular Federal
judge would have preferred to have seen more witnesses or more
evidence, although it was a fair and reasonable proceeding.
However, if he disagrees as to the conclusion that a constitution-
al right was violated, then that is something that he would have to
consider, and he would grant, not so much another hearing, but
whatever additional fact finding was necessary to come to a conclu-
sion about it. It would really depend on the nature of the question
that was involved.
In some cases I can see it leading to not reopening the State pro-
ceedings, and in others, it might be necessary to reopen it.
Senator Biden. In the interest of time, Mr. Chairman, I have sev-
eral more questions on habeas corpus and the exclusionary rule,
which I would like to submit in writing, if I could.
The Chairman. Without objection.
[The following was received for the record:]
32
Response of the Department of Justice to
Questions Proposed by Senator Biden
Concerry.ng Title VI of S. 829
(Habeas Corpus Reform)
The questions proposed by Senator Biden on Title VI of
S. 829 are in four parts. The first three parts are concerned
respectively with the proposed standard of review in habeas
corpus proceedings, the standard governing excuse of procedural
defaults, and the proposed time limitation rules. The fourth
part has no title, but appears to be concerned primarily with the
work involved in handling habeas corpus cases.
I. REVIEW OF LEGAL CLAIMS OF STATE PRISONERS
Part I poses three questions relating to the proposed
standard of review (the "full and fair" standard) in Title VI of
S. 829. The first question is as follows:
Won't federal courts still have to look into
state court proceedings to determine if the
claim was "fully and fairly adjudicated"? In
other words, would not this bill merely change
the standard of review without actually af-
fecting the level of federal intervention?
Response; Assuming satisfaction of the other requirements for
seeking habeas corpus set out in Title VI, examination of the
state proceeding would be required to the extent necessary to
determine compliance with the standard of "full and fair" adjud-
ication of the petitioner's claims. In comparison with the cur-
rent review standards, however, the inquiry would be easier, less
intrusive and disparaging, and less likely to result in protracted
proceedings or the invalidation of a state conviction.
In practical terms, the present rules produce results
that border on the absurd, requiring reversal of judgments many
years after the normal conclusion of state proceedings on grounds
that the habeas court may regard as no more than reasonable diffe-
rences of opinion concerning close or unsettled questions in the
interpretation or application of federal law on which the federal
courts themselves may well disagree. In addition to enhancing
the finality of state criminal judgments and avoiding the burden
on the state of re-trying the petitioner which may result when a
writ is presently granted in such a case, the proposed reform is
likely to make it possible to decide cases more easily and with
less extensive litigation, whether or not the petitioner would
ultimately obtain relief under the current rules. A good
illustration was provided by the Chief Justice of Iowa in his
testimony on the proposals:
Explore with me for a moment the anatomy
of a 1975 Iowa murder trial. State v. Moore.
Moore, who assaulted and injured a jailer at
a recess, in the course of trial badgered a
witness, used vulgar language, and persisted
in profane and disrespectful statements to
the court. After calling another recess and
subsequently warning him, trial court ulti-
mately had Moore removed from the courtroom
during twenty-five minutes of an expert's
testimony. In a 1979 decision, the Iowa
Supreme Court ruled Moore had waived his
sixth amendment right to confront the adverse
33
witness and upheld his conviction. Our
opinion quoted the relevant portion of the
transcript and applied as controlling the
Supreme Court's standards laid down in
Illinois V. Allen. In 1980 a federal trial
judge, ruling on Moore's application for writ
of habeas corpus, set out the same portion of
the transcript, found Illinois v. Allen to be
controlling, but issued the writ. In 1981,
following the State's appeal, the Eighth Cir-
cuit, again quoting the then-familiar portion
of the transcript and for the third time
applying Illinois v. Allen standards, agreed
with the Iowa Supreme Court and reversed the
federal district court.
Thus Moore was permitted to collaterally
attack his conviction in two federal courts
even though the identical issue was fairly
and fully considered and decided in his state
court direct appeal. This process injected
over two years of uncertainty into his case
after his state appeal was concluded, cost
Iowa substantial resources to defend the
judgment it had secured in one state court
and retained in another, and risked tensions
between state and federal courts in Iowa.
No one suggests federal oversight of
state decisions involving federal constitu-
tional rights should be eliminated. Adoption
of [the reform proposals], however, would
avoid many unfortunate and wasteful proceedings.
For example, proposed new subsection (d) to
section 2254 of title 28 provides ... [for
deference to full and fair state adjudi-
cations] .... Such a provision, promptly
applied by the federal district judge in the
Iowa case just discussed, would have termi-
nated the Moore litigation in the federal
courts. \_/
Further economies would result from the creation of a
uniform standard applicable to both factual and non-factual
issues. The current rules can require difficult, if not arbi-
trary, decisions as to whether a particular state court deter-
mination is purely one of fact or reflects an application of law
to fact. This occurs because the rule governing re-adjudication
of factual questions (deference allowed if a number of poorly
defined conditions are met) differs from that governing "re-adju-
dication of mixed questions of law and fact (re-adjudication
uniformly mandated) . Since the "full and fair" standard would
apply the same criterion of "reasonableness" to review of both
factual and non-factual determinations, such hairsplitting dis-
tinctions would no longer be required. 2_/
- The Habeas Corpus Reform Act of 1982: Hearing on S.
2216 Before the Senate Comm. on the Judiciary, 97th Cong.,
2d Sess. 232-34 (1982) [hereafter cited as "Hearing"].
-^ See 128 Cong. Rec. S11856 (daily ed. Sept. 21, 1982)
(statement of Senator Thurmond concerning S. 2838)
[hereafter cited as "Sponsor's Statement"].
34
Finally, it should be noted that the reform offers other
types of benefits, in addition to the improvements that can be
expected in litigational economy and finality of judgments. These
include fostering state responsibility in the enforcement of
federal rights and according more appropriate recognition to the
dignity and independent stature of the state courts. Justice
O'Connor has stated:
If our nation's bifurcated judicial sys-
tem is to be retained, as I am sure it will
be, it is clear that we should strive to make
both the federal and the state systems strong,
independent, and viable. State courts will
undoubtedly continue in the future to litigate
federal constitutional questions. State
judges in assuming office take an oath to
support the federal as well as the state con-
stitution. State judges do in fact rise to
the occasion when given the responsibility
and opportunity to do so. It is a step in
the right direction to defer to the state
courts and give finality to their judgments
on federal constitutional questions when a
full and fair adjudication has been given in
the state court. 3^/
The second question in Part I is as follows:
Is it not likely that there will have to be
extensive litigation in individual cases as
to what exactly is meant by a "full and fair"
interpretation of Constitutional law? For
example, would it be "fair" for a state court
to base its decision on an unappealed district
court case if several districts have decided
a case differently?
Response; Experience with existing standards of review of a
comparable nature indicates that no unusual amount of litigation
will result. A state adjudication would normally be "full and
fair" in the intended sense if the resulting factual and non-
factual determinations were reasonable and were arrived at by a
process consistent with due process. Examples of limited stan-
dards of review applicable to legal as well as factual determi-
nations appear in other contexts in federal law. For example,
a federal appellate court will not consider a claim of trial
error to which no objection was made at trial unless it consti-
tutes "plain error." This limiting standard of review extends to
pure questions of law, such as the formulation of jury instruc-
tions. 4/
^' O'Connor, Trends in the Relationship Between the
Federal and State Courts from the P^^^P^^^^^^ "^..f _^^^j^l)
Court Judge, 22 William & Mary L. Rev. BUi, m't-oiS (1981)
-' See Sponsor's Statement, supra note 2, at S11856.
35
A second analogy is provided by the standard for judi-
cial review of the constitutionality of state executive action in
suits for damages under 42 U.S.C. § 1983. In such suits state
executive officials are generally given a "good faith" defense or
iminunity, under which the official incurs no liability if he rea-
sonably believed that his actions were lawful. Hence, the dispo-
sition depends not on whether the official was correct in his
view of federal law in the reviewing court's estimation, but on
whether the official's view of federal law and its implications
under the circumstances was reasonable. 5^/ While all standards
of review occasionally give rise to interpretive litigation, ex-
perience does not show that limited standards of this sort are
more troublesome than other types of standards.
The question also contains a more specific inquiry which
asks, in substance, whether a state court interpretation of federal
law would automatically be reasonable in the sense of the "full
and fair" standard if it was consistent with the view of a single
district judge. This question could seldom arise as a practical
matter since (i) non-factual issues which arise in habeas corpus
litigation are usually questions of application of law to fact
rather than pure questions of law, and (ii) the positions of the
state courts on unsettled questions of federal law usually fall
within the range of options presented in the decisions of the
federal courts of appeals. For the few cases in which this
question might arise, the answer is obviously no. District judges
vary greatly in ability and propensities, and will occasionally
take positions that are simply unreasonable in light of Supreme
Court precedent or constitutional history. Since there is nothing
in the statement of the standard or in its underlying policies or
legislative history to support a conclusive presumption of rea-
sonableness for the views of district judges, unsupported by
endorsement at the level of the federal courts of appeals, it is
difficult to see hov7 that question could become a subject of
litigation.
The third question in Part I is:
Proponents of the bill have stated the "full and
fair" adjudication is to be measured by a standard
of "reasonableness." Do you agree? Do you think
a definition should be set forth in the statute
itself?
Response; The intended interpretation of the "full and fair"
standard has been maintained consistently in the legislative his-
tory of the proposals. The essential requirements are that the
state determination be reasonable and that it be arrived at in a
manner consistent with applicable' federal procedural requirements,
including due process. Appropriate allowances would also be made
for re-adjudication in cases of subsequent discovery of new evi-
dence and subsequent changes of law. 6/
We have stated that we would have no objection to
codification of the intended interpretation in the bill. Sui-
table language for that purpose appears in the hearing record on
S. 2216 of the 97th Congress. 7/
-^ See id.
1/
7/
See Sponsor's Statement, supra note 2, at S11855-57;
Hearing, supra note 1, at 33-34; id. at 93-98.
See Hearing, supra note 1, at 33-34.
36
II. PROCEDURAL DEFAULTS
The questions in Part II relate to the proposed codi-
fication of the "cause and prejudice" standard. The first
question is as follows:
Is it necessary to codify the cause and preju-
dice rules established by the Supreme Court?
Response; "Necessity" is a matter of degree, but it is certainly
desirable to do so. The Supreme Court has not provided answers
to the most important questions concerning the meaning of "cause"
in the five years since the standard was initially adopted. In
particular, the circumstances in which attorney error constitutes
"cause" to excuse a procedural default remain uncertain. This
has resulted in a large volume of litigation in the lower courts,
an abundance of obscure and conflicting interpretations, and
inconsistent treatment of similar cases. If a clear, general
standard can be achieved through legislation the benefits of doing
so are apparent.
The second question in Part II is as follows:
Last year the Supreme Court emphasized the
need for flexibility in determining "cause"
and "prejudice". In the case of Engle v.
Isaac the Court stated: "The terms 'cause'
and 'actual prejudice' are not rigid concepts.
They take their meaning from principles of
comity and finality discussed above. In
appropriate circumstances they must yield to
the imperative of a fundamentally unjust incar-
ceration [citation]." Won't codification of
the Supreme Court's rules remove the judicial
flexibility necessary to consider individual
cases?'
Response; The rules proposed in Title VI are in no way rigid or
inflexible. They have been carefully designed so as to strike an
appropriate balance between the need for flexibility and the need
for consistency and reasonably definite standards.
The question may reflect a misunderstanding of the
Supreme Court's views on this issue which has been earnestly
promoted in the testimony of the American Civil Liberties Union
on the reform proposals. £/ The tenor of this misunderstanding
is that the Court believes that no definite rules governing the
"cause and prejudice" inquiry can be stated and that the ultimate
decision concerning the excuse of a default must be left to in-
dividual judges' subjective sense as to what is just in parti-
cular cases.
8/
See Statement of the American Civil Liberties Union on
S. 829 Before the Senate Comm. on the Judiciary, at 24-25
(May 18, 1983) .
37
This is clearly not the view of the Supreme Court. In
Engle v. Isaac, 9^/ for example, the Court laid down two catego-
rical rules partially defining the "cause" inquiry: (i) the per-
ceived futility of raising a claim in state proceedings, because
the state has consistently followed a contrary rule, is not "cause"
to excuse a procedural default, and (ii) the fact that the support
for a claim rests in part on decisions rendered after a default
is not "cause" unless at the time of the default the defendants
"lacked the tools to construct their constitutional claim." 10/
There is, in fact, nothing in the passage quoted in the question
which conflicts with the establishment of such rules. The quoted
passage only states that the "cause and prejudice" standard does
not bar raising in habeas corpus proceedings every claim defaulted
on in state proceedings, but allows claims to be raised in appro-
priate circumstances, notwithstanding a default, in order to avoid
injustice. The codification proposed in Title VI is fully con-
sistent with this point.
The third and final question concerning the "cause and
prejudice" standard is as follows:
Should the "cause" and "prejudice" provision
be amended to include a "safety valve" pro-
vision such as an exception for cases in which
strict application of the statute would result
in manifest injustice?
Response; This has already been partially answered in the response
to the precediag question. Qualifying the cause and prejudice
standard with such an exception would produce an authorization
for excusing procedural defaults broader than that of current
law. It would, for example, enable district judges to override
the rule established by the Supreme Court in Engle v. Isaac that
the alleged futility of raising a claim is not "cause' in cases
in which they believed that complying with the rule would result
in manifest injustice. 11/
It is also dubious that a standard so qualified would
have much meaning or effect. This point is discussed below in
connection with the corresponding question on the time limitation
proposal.
III. STATUTE OF LIMITATIONS
The opening statement of Part III notes that the reform
proposals would create a general one year limitation period for
habeas corpus and a corresponding two-year period for federal
prisoners' collateral attacks. It goes on to state that claims
are now dismissed "only when the prosecution can show it has been
prejudiced by delay."
9/
456 U.S. 107 (1982)
— '' See id. at 130-34
11/
The rule stated in Engle v. Isaac would, of course,
apply under the formulation of Title VI, which does not
include the supposed futility of raising a claim among the
grounds for a finding of "cause."
38
These statements are misleading. Rule 9(a) of the
habeas corpus procedural rules j^/ states that a petition may be
dismissed if the state has been prejudiced in its ability to
respond, unless the petition is based on grounds which could not
reasonably have been discovered prior to the prejudicial occur-
rences. As the language of the Rule suggests, dismissal under
the Rule is a matter of discretion, and a judge may entertain a
petition notwithstanding the existence of prejudice to the state
when he feels it is "in the interest of justice" to do so. 13/
For this reason and others. Rule 9(a) has not been a meaningful
check on belated petitions. 14/
It may also be noted that no other limitation on the
review or re-opening of criminal judgments in the federal courts
depends on a showing that the state has been prejudiced by a de-
fendant's delay. The rules proposed in Title VI are, in fact,
quite generous in comparison with other federal limitation rules.
The proposed habeas corpus limitation would be a one year period,
normally running from exhaustion of state remedies. The starting
point of the limitation period would be deferred in appropriate
cases, including cases in which the right asserted was initially
recognized at a later point by the Supreme Court and cases in
which the factual basis of the claim could not reasonably be dis-
covered till a later point. The corresponding two year time limit
for federal prisoners, normally running from finality of judgment,
would be subject to the same exceptions.
By contrast, under existing rules state prisoners seekini
direct review in the Supreme Court must apply within 90 days,
subject to a possible 60 day extension, with no extensions or
exceptions allowed beyond that. 15^/ As a second illustration,
federal prisoners alleging discovery of proof of their innocence
after trial must move for a new trial within two years of finality
of judgment. No extensions or exceptions are recognized to that
period. 16/
— ^ See 28 U.S.C. foil. § 2254.
A substantially identical rule 9(a) appears in the
procedural rules governing collateral attacks by federal
prisoners. See 28 U.S.C. foil. § 2255.
— '' See Advisory Committee Note to Rule 9(a), 28 U.S.C.
14/
15/
foil. § 2254.
See, e.g. , Spalding v. Aiken, No. 82-665 (Supreme Court
April 18, 1983) (district judge attempting to dismiss
petition under Rule 9(a) twice reversed on appeal, where
triple-murderer filed petition fourteen years after
conviction asserting claims previously raised and rejected
in state appeal) .
See Sup. Ct. R. 11, 22,
— ^ See Fed. R. Crim. P. 33,
39
Following the introductory remarks. Part II poses four
specific questions. The first is as follows:
In your opinion how much abuse occurs in cur-
rent law? How many prisoners purposely delay
the presentation of their claims in the hope
that the passage of time will undermine the
prosecution's ability to dispute their claims
in court?
Response; In capital cases, deliberate delay in filing is the
normal practice. This practice, together with repetitive filing,
has effectively nullified the capital punishment legislation of
the states. 17/
With respect to non-capital cases, the question appears
to confuse the question of abuse with the question of deliberate
delay. If, for example, a single prisoner files dozens of
petitions, that constitutes abuse on any reasonable understanding
of the term, whether or not the prisoner was consciously aware of
potential claims at an earlier point but for some reason withheld
them until later filings. 18^/ Needless to say, the imposition of
other time limits in criminal procedure 1_9/ does not depend on
the assumption that defendants deliberately delay the assertion
of potential claims. The propriety and desirability of a time
limit for collateral remedies is dependent to no greater degree
on such an assumption.
The second question in Part III is as follows:
What percentage of petitions filed by prisoners
in your state occur within that time period
(and therefore would not be affected by the
bill?)
Response: This question is apparently addressed to state officials
and is not apposite to the Department of Justice.
The third question in Part III is:
Will the time limitations give prisoners an
adequate opportunity to research and present
their habeas petitions?
— ' See Statement of Justice Lewis F. Powell Before the
Eleventh Circuit Conference in Savannah, Georgia, May 8-10,
1983, at 9-14; Attorney General William French Smith,
"Proposals for Habeas Corpus Reform" in P. McGuigan & R.
Rader, eds.. Criminal Justice Reform, at 145-46 (Free
Congress Research and Education Foundation 1983) .
ii/ See Statement of Justice Lewis F. Powell Before the
A~B A Division of Judicial Administration, San Francisco,
c;?lf;rnil' Aug. 9, 1982, at 9 n.lO (footnote) (30 petitions
by single prisoner) .
—^ See text accompanying notes 15-16 supra.
40
Response: The proposed time limitation rules allow ample time for
the preparation and presentation of claims. The usual starting
point for the limitation period for habeas corpus petitions would
be exhaustion of state remedies. Exhaustion is normally accom-
plished by presenting a claim initially to a state trial court,
and from there taking it up on review to the highest court of the
state. When a prisoner has already presented his claims in state
proceedings at the trial and appellate level, it is very reason-
able to require that he re-present the same claims to a federal
habeas court within a year thereafter.
The proposed period of two years from finality for fe-
deral prisoners is also fully adequate. As noted earlier, the
basic period is the same as that for new-trial motions based on
newly discovered evidence under Criminal Procedure Rule 33. The
proposed limitation rule for federal prisoners' collateral attacks
is, moreover, subject to a number of exceptions favorable to tne
prisoner which do not appear in the Rule 33 remedy. 20/
The final question in Part III is:
Should the statute of limitations include a
"safety valve" provision, such as an exception
for cases in which strict application of the
statute would result in "manifest injustice"?
Response: An amendment of this sort is inconsistent with the pur-
pose of the reform and would undermine its effect. It bears
emphasizing once again that the proposed limitation rules are
already more forgiving of delay than comparable time limits in
other areas of criminal procedure; other, stricter time limits
are subject to no "manifest injustice" exception. 21/
The basic problem of the current system is the absence
of any rule that provides meaningful assurance of an end to liti-
gation. A standardless "manifest injustice" exception, leaving
the applicability of the time limitation to the subjective sense
of individual judges, would suffer from the same shortcoming as
the essentially standardless "laches" doctrine of Habeas Corpus
Rule 9(a) . 22/
Specific problems that would arise can readily be
imagined. One may ask, for example, whether conviction of a
defendant whose counsel is incompetent constitutes a "manifest
injustice." If a petitioner's contention that his counsel was
incompetent were sufficient to put the habeas court to inquiry
and to require response by the state, then a limitation rule
would have little meaning. Claims of incompetent counsel are
already the most common type of allegation in habeas corpus peti-
tions, 23^/ and other kinds of claims can be effectively recast as
counsel incompetence claims by alleging that counsel's failure to
raise them made his assistance constitutionally ineffective.
The example of incompetence-of-counsel claims is merely
illustrative; similar questions would arise with respect to many
other types of claims. For example, it would presumably be argued
that the "manifest injustice" exception is brought into play by
20/
— See text accompanying note 16 supra.
21/
— See text accompanying notes 15-16 supra.
22/
— See text accompanying notes 12-14 supra.
23 /
— See P. Robinson, An Empirical Study of Federal Habeas
Corpus Review of State Court Judgments 4(a), 12 (Federal
Justice Research Program 1979) .
41
such allegations in a petition as denial of counsel, coerced con-
fession, knowing prosecutorial use of false evidence, prosecu-
torial withholding of exculpatory evidence, judge and jury bias,
violation of plea bargains, and insufficiency of the evidence to
support a conviction. To an unpredictable extent individual
judges would agree and entertain petitions notwithstanding the
expiration of the time limitation period.
IV. THE WORKLOAD PROBLEM
Part IV poses the following question:
According to the Administrative Office of the
U.S. Courts, nearly 97% of all state habeas
petitions are dismissed pretrial. Doesn't
this suggest that the courts are successfully
selecting and processing meritorious cases?
Is it responsible or fair to limit all
prisoners' access to the courts at the risk
of the 3% or so who may be wrongly imprisoned?
Response; As the question notes, the proportion of habeas corpus
cases in which evidentiary hearings ("trials") are held is small.
This is because the habeas corpus jurisdiction of the district
courts is quasi-appellate in character, usually involving a deci-
sion on the state record together with written submissions by the
state attorney general's office. Hence, concluding that no undue
burden results from habeas corpus cases because evidentiary
hearings are uncommon is much like concluding that the federal
courts of appeals do no work because the number of trials they
conduct is zero. The low incidence of evidentiary hearings says
nothing about whether the courts are "successfully selecting and
processing meritorious cases." Rather, it reflects the fact that
the state record is adequate for purposes of the review in most
instances. 24/
The inference suggested in the question that 3% of
prisoners are "wrongly imprisoned" because evidentiary hearings
are held in about 3% of habeas corpus cases is a complete non
sequitur. The occurrence of an evidentiary hearing has no parti-
cular relationship to the validity or invalidity of the peti-
tioner's claims or to the likelihood that he has been wrongly
imprisoned.
The work involved in processing habeas corpus cases is,
for the most part, the type of work characteristic of appellate
proceedings. In connection with a typical petition, the state is
required to transmit records and to respond to the legal and
factual contentions raised by the petitioner. The district judge
must review the record to the extent necessary and re-determine
every claim that is properly presented, working from the eviden-
tiary basis set out in the record together with the submissions
and arguments of the parties. Frequently the district court's
decision is appealed, resulting in additional work for judges,
state officials and defense counsel at the level of the federal
courts of appeals. Since a prisoner is required to exhaust state
remedies before seeking federal habeas corpus, the lure of an
additional level of review in the federal courts results in
increased recourse to state remedies. 2^/ The easy availability
of federal habeas corpus accordingly increases the workload of
the state courts as well as the federal courts.
24/
25/
For criteria affecting the holding of evidentiary hearings
under current law, see 28 U.S.C. $ 2254(d); Townsend v. Sain,
372 U.S. 293, 312-ll~Tl963) .
The workload question is discussed in greater detail in
Hearing, supra note 1, at 42-44.
25-694 0-84-4
42
Responses to Senator Biden's Questions regarding Exclusionary Rule Reform;
Question No. 1. "What is your view if proposals to
allow a civil damage action against the United States if the
Exclusionary Rule is limited?
- Are not juries unlikely to rule against a
guilty defendant even if his Fourth Amendment rights
were clearly violated?
- If this Committee were to authorize civil
damage suits against the government for violations
of Fourth Amendment rights, shouldn't we also allow
the award of attorneys fees? Should punitive
damages be authorized in addition to actual damages
to deter future constitutional violations?"
Answers ; The administration opposes jury trials in
civil actions against the United States. Juries may indeed
be tempted to find against a criminal defendant because of
the type of person he is rather than follow the law as provided
by the Court through instructions. In a similar vein, juries
may be expected to be inclined to emotionally skew a decision
in favor of a single party plaintiff against a deep pocket
defendant such as the United States. In the thirty-five
years since the United States waived its sovereign immunity
with enactment of the Federal Tort Claims Act, jury trials
have not been authorized against the United States. There
has been no showing that bench trials work to the detriment
of either party under the Federal Tort Claims Act. The
primary reason for providing bench or non-jury trials is the
belief that the government will be unfairly exposed to dis-
proportionately high damage awards and may unfairly be the
subject of bias in liability findings. To put it another
way, it is not difficult to imagine a juror thinking to
himself, "What is a million dollars to the United States?"
On the other side of the coin, it is not difficult to imagine
a juror finding against the claim of a political activist
43
plaintiff or a convicted criminal plaintiff despite the
fact that that person was the victim of a constitutional
infraction. In either case, the consequences would be unjust
and unfortunate. In addition, there would be increased
delays as a result of jury proceedings and increased expense
for all parties including plaintiffs. For all of these
reasons we think it would be unwise to single out constitutional
torts for jury trials under the Federal Tort Claims Act.
We oppose any provision which would award additional
attorneys fees to prevailing plaintiffs against the government
in a tort case. First, it is not necessary given the current
scheme of the Federal Tort Claims Act which provides that up
to 25% of any judgment may be paid to the plaintiff's attorney.
This is the manner in which reimbursement of attorneys has
been handled under the law of tort in the United States for
over 200 years. We fail to see why a plaintiff who happens
to be suing the government should be treated any differently
from any other tort plaintiff. It is certain that the
availability of attorneys fees would invite artful pleading
by plaintiff's counsel and increased litigation over the
propriety of the pleadings as well as the amount of any fees.
Providing fees in constitutional tort cases would also serve
as a strong incentive for the courts to find constitutional
implications in what would otherwise be properly classified
as common law torts. Finally, awarding attorneys fees to
plaintiffs would suffer from a lack of even-handedness.
Experience has shown that a large proportion of constitutional
tort cases are frivolous and malicious. The possibility of
an award of attorneys fees will encourage such actions parti-
cularly if the United States cannot seek such an award when
it prevails. Accordingly, we would oppose any new attorneys
fees provision under the Federal Tort Claims Act.
44
Punitive damages should not be authorized against the
United States. The primary object of tort law is to attempt
to compensate victims for losses they have suffered. By
permitting punitive damages to be awarded against the United
States plaintiffs who have suffered little or no compensable
injury could receive a windfall out of all proportion to
their injury. This would seem to be illogical and unfair to
the taxpayers. In addition, we note that the concept of
punitive damages is one of punishment as opposed to compen-
sation. Legal authorities are overwhelmingly of the view
that such punishment is inappropriate against a governmental
entity or institution because the punishment is borne by the
innocent citizens who comprise the body politic. Moreover,
in order to adequately punish the federal government, the
damage award would have to be huge and grossly disproportionate
to any injuries suffered. In a fairly recent case the Supreme
Court rejected the concept of punitive damages against a
municiple government. Fact Concerts Inc. v. The City of
Newport, 453 U.S. 247 (1981). We think this decision to be
correct and that an opposite policy would be extremely unwise
and unprecedented.
45
THE EXCLUSIONARY RULE
2. It has been argued that deterrence of police misconduct
is an important function of the exclusionary rule.
Q. Doesn't a "reasonable good faith" exception as proposed
by the administration reward ignorance of the Constitution?
A. A reasonable good faith rule requires more than an
assessment of the subjective state of mind of the officer who
conducted the search. Such a rule would also require a showing
that the officer's good faith belief in the lawfulness of the
search is grounded in objective reasonableness. The reasonable
good faith exception to the exclusionary rule was adopted by the
Fifth Circuit en banc in United States v. Williams, 622 F.2d 830
(5th Cir. 1980). The Williams opinion was based as an exhaustive
analysis of all relevant Supreme Court cases and noted explicitly
that "the belief [in the lawfulness of the search] in addition to
being held in subjective good faith, must be grounded in an
objective reasonableness. It must therefore be based upon
articulable premises sufficient to cause a reasonable, and
reasonably trained, officer to believe that he was acting
lawfully." 622 F. 2d 830, 8U1 fn. 4a. This objective standard by
which the reasonableness of the officer's belief would be tested
would ensure that ignorance of the constitution and the relevant
cases construing the Fourth Amendment would in no way be rewarded
under the exception to the exclusionary rule which the Department
supports. As stated by Justice White in his concuring opinion in
Illinois V. Gates, U.S. , No. 8I-M30, June 8, 1983, slip
op. p. 16, fn. 15: "Grounding the modification [of the exclu-
sionary rule on reasonable good faith] ... retains the value of
the exclusionary rule as an incentive for the law enforcement
profession as a whole to conduct themselves in accord with the
Fourth Amendment."
Q. What disciplinary procedures if any, exist to respond
to official misconduct in violation of the Fourth Amendment.
How often have they been employed?
46
A. DOJ order 1752. 1A, dated April 27, 1981 and presently
in effect lists several "offenses" by Departmfent of Justice
employees that could result in disciplinary action. We would be
happy to make the entire order which describes the disciplinary
process available to the Committee at its request. Three
"offenses" listed in the order are concerned with improper
searches and seizures. A page from DOJ order 1752.1 A
summarizing these "offenses" and setting forth possible
punishments is attached for your information. Since the DOJ
order went into effect, no employees have been punished for an
improper search or seizure.
DOJ order 1752. 1A applies to all components of the Depart-
ment of Justice except the FBI because traditionally the FBI has
been permitted to promulgate and employ its own disciplinary
rules and regulations. However, the FBI considers that negli-
gent, reckless, or intentional violations of constitutional
rights are actionable offenses under its own Schedule of
Disciplinary Offenses and Penalties. An illegal search would be
covered by a category in the schedule proscribing criminal,
dishonest, immoral, infamous, or notoriously disgraceful conduct.
The punishment may extend to removal in an appropriate case, even
for a first offense.
Q. What civil tort remedies now exist for victims of
illegal searches? How often are they used and what is the
result?
A. From the adoption of the Fourth Amendment in 1791 until
the Supreme Court's decision in Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, M03 U.S. 388 (1971),
a person whose rights had been violated by a federal officer
conducting a search without a warrant, without probable cause, or
in an otherwise improper manner could not recover compensation in
federal court from either the government or the officer. The
government was shielded by sovereign immunity and the absence of
an act of Congress providing a cause of action was thought to
47
shield the officer from personal liability. However, in Bivens
the Supreme court held that federal courts could award the victim
of an illegal search damages recoverable from the officer
notwithstanding the absence of a Congressional act creating such
a cause of action.
Since 1971, there have been an estimated 10,000 Bivens
suits, which are also known as constitutional tort actions since
their primary characteristic is an allegation of a personal
cause of action for a tort arising directly out of a provision of
the Constitution such as the Fourth Amendment. The lower federal
courts have extended the Bivens tort action to claims arising out
of virtually the entire bill of rights and records are not
maintained by the Department on the number of Bivens suits that
allege Fourth Amendment violations. Fewer than 20 Bivens cases
have resulted in judgements against the federal officer defend-
ants and in over half of these the officers have successfully
appealed or prevailed on post-trial motions, so in only a very
few cases has an officer had to pay damages. Approximately 2M00
Bivens cases are presently pending.
Q. In your opinion, how much is "reasonable good faith"
likely to differ between individual police officers and between
different areas of the country?
A. Initially, it should be noted that the reasonable good
faith exception to the exclusionary rule would apply only in
federal courts under the Department's proposed legislation.
Normally, federal officers such as FBI or DEA agents conduct
searches for evidence presented in federal court. We would
expect the "reasonable" portion of the reasonable good faith
exception — the portion which is concerned with the officer's
knowledge of the law of search and seizure — to be uniform for
all full time federal officers throughout the United States.
To the extent that state and local officers conduct
searches, the fruits of which occasionally are offered as
evidence in federal courts, we would expect only very minor
differences in what constitutes reasonable knowledge of Fourth
48
Amendment law. Vie would expect all such officers to be
knowledgeab? a of the so-called "bright line" rules laid down in
this area fn... ^-.imp. *:.j time by the Supreme Court.
3. Critics of the current exclusionary rule argue that it
allows many criminals to escape conviction. While I know of no
one who wants to see the guilty go unpunished, the impact of the
exclusionary rule has been examined in two studies:
In 1978 the GAO surveyed 3,000 cases in 38 U.S. Attorneys
offices and found only four-tenths of one percent of declined
cases were due to Fourth Amendment search and seizure problems.
The report concluded "resources expended were modest when
compared with total resources used in the criminal justice
system."
The National Institute of Justice recently found 4.8 percent
of the cases it studied in California to be rejected on search
and seizure grounds from 1976 through 1979.
Q. Have there been any other studies of the impact of the
exclusionary rule in obtaining convictions?
Q. Have there been any studies of the impact of the
exclusionary rule on police conduct?
Q. Has there been any analysis of the quality of police
training since the Supreme Court implemented the exclusionary
rule?
Q. Utah, Colorado, and Arizona recently enacted good faith
statutes. Has there been a study of the effect of those laws?
Q. Can't these studies be interpreted as evidence that the
exclusionary rule works?
Q. Shouldn't Congress have answers to such questions before
we Act?
Q. Should we change a protection of a valuable Constitu-
tional right without further information?
A. Since all of the above questions deal with whether
studies have been done that would support or refute the wisdom of
a reasonable good faith exception to the . exclusionary rule, we
49
will attempt to answer them en bloc. Initially, we do not make
any claim that modification of the exclusionary rule will, by
itself, reduce the rate of crime. On the other hand, as we have
pointed out in testimony before the Committee over the past two
years, the rule operates to free known murderers, robbers and
drug traffickers and such a rule of evidence that leads to those
results without a reasonable purpose to support it is intoler-
able. As the Committee is aware, the ostensible purpose of the
rule is almost always stated by the courts to be deterrence of
unlawful police conduct.
The literature on the exclusionary rule has been voluminous.
(Indeed, a member of the Committee, Senator Mathias, has been
among those contributing to this body of articles. See "The
Exclusionary Rule Revisited," 28 Loyola Law Review 1 (1982) in
which the author questions the constitutionality of a reasonable
good faith exception to the rule. As the Committee is aware, we
are confident our proposal would pass constitutional muster.) In
our view, this extensive collection of material has failed to
support an argument that the rule accomplishes its alleged
rationale of deterrence. As the Supreme Court has stated
following a review of the literature that existed at the time:
"No empirical researcher, proponent or opponent of the rule, has
yet been able to establish with any assurance whether the rule
has any deterrent effect even in the situations in which it is
now applied. United States v. Janis, 428 U.S. 433, 450 f n . 22
(1976).
As for studies of the exclusionary rule to assess its impact
on the conviction rate and on police conduct and training, the
summary preface to the NIJ study describes the 1978 GAO study as
"the only systematic look at the effects of the exclusionary rule
which has been conducted in the past ten years." We would also
take issue with the implicit conclusions of the GAO report that
since less than half of one percent of the cases declined were
due to the exclusionary rule it is not a significant criminal
50
justice issue. First, the GAO report is analytically flawed
because it only considered cases formally entered into the
records of the participating U.S. Attorney's Office and did not
take into account the cases informally discussed by Assistant
U.S. Attorneys and law enforcement officers and declined without
a written entry into the system of records. Second, as the
Committee is aware, the rule is a necessary consideration of
every police arrest and of every seizure of physical evidence,
and is the overwhelming component of drug case litigation.
Moreover, litigation of exclusionary rule issues contributes to
the appellate court overload. Thus, the argument of supporters
of the rule that it is of no real moment is, in our view, totally
disingenuous. Furthermore, any studies that would indicate that
the rule has resulted in an improvement in police conduct and
training would hardly be unexpected. We would emphasize,
however, that the same high standards of police conduct would be
requirea under our proposal as are presently mandated. As
explained in answer to the previous question, police conduct must
be informed to be reasonable. Finally, we are unaware of the
existence of studies focusing on the recent experiences in Utah,
Colorado and Arizona, but would be pleased to consider any
brought to our attention.
M. The Administration's proposal does not elaborate on the
test to be employed in determining whether a warrantless search
was conducted in good faith.
How will the court determine a good faith exception in
warrantless searches? Isn't there a risk of chaos in the Courts as
the various district and circuit courts try to reach their own
interpretations?
A. We doubt that there will be significant differences in
the federal courts in determining what constitutes a reasonable
good faith violation of the Fourth Amendment. There has already
developed a body of law covering what constitutes such a
51
violation in connection with Bivens , or constitutional tort,
suits discussed in connection with question two. After the
Supreme Court found that the plaintiff in Bivens had a direct
cause of action under the Constitution against the federal officers
who had arrested him and searched his apartment, it remanded the
case to the court of appeals for a determination of whether the
officers were entitled to any sort of immunity due to their
status. The court of appeals held that they were entitled to
qualified immunity. Specifically, the court held that it was a
valid defense to an alleged constitutional tort for the federal
officers to prove that they "acted in the matter complained of in
good faith and with a reasonable belief in the validity of the
arrest and search and in the necessity for carrying out the
arrest and search in the way the arrest was made and the search
was conducted." Bivens v. Six Unknown , Named Agents of the
Federal Bureau of Narcotics, 456 F. 2d 1339, 13^1. Establish-
ing such reasonable good faith is the way in which most Bivens
suits which reach trial are defended. Thus, the development of a
reasonable good faith exception to the exclusionary rule would
parallel and draw upon this existing body of law.
52
DOJ 1752. lA
Apr. 27. 1981
APPENDIX 1. STANDARD SCHEDULE OF DISCIPLINARY OFFENSES AND
PENALTIES FOR EMPLOYEES OF THE U. S. DEPARTMENT
OF JUSTICE.
REMARKS
-
if
1 ^
•
c
CM
•
a
a
51
1i
•
-a
>
e
s.
•i-4
B
%
E
a
K
Official
reprimand
to removal.
DISCI PL
Second
Offense
15-day
suapension
to removal.
15-d8y
suspension
to removal.
Official
reprimand
to 5-day
suspension.
a
u. o
Official
reprimand
- to removal.
Official
reprimand
to removal.
Official
reprimand
to 1-day
suspension.
EXPLANATION
Examplet False
atatements In
obtaining
warrants,
dlsregsrd
of warrant
requirements.
Example: Groas
errora in
obtaining
warrants when
standard pro-
cedure is to
check further
and there is
time to check
further.
Example:
ExeciA ing
warrant at
wrong address,
fsiling to
check names of
suspects.
26. Intentional
vlolstions of rules
governing searches
and ssizures.
27. Reckless disregard
of rules gavernlnq
sesrches and
seizures.
28. Negligent
violations of
rules governing
searches and
seizures.
/
Appendix 1
Page 11
53
Senator Biden. I assume Senator Specter will pursue the ques-
tion on speedy trial, and whether or not the administration would
object to shortening pretrial detention from 90 to 60 days. The bail
provision in S. 829 is substantially what this committee reported
last Congress. I will let Senator Specter address the speedy trial
issue.
Let me talk about the drug strategy for just a minute. It is con-
spicuous by its absence in this bill. And let me just say, straight
out, that maybe as a consequence of your leaving, things seem not
to be moving as smoothly as the administration has predicted they
would.
I read yesterday a newspaper article in the Times which reported
that the president of the antidrug task force is falling behind in
organization. Officials said delays are also caused by difference of
opinion about the allocation of resources in the chain of command
among participating agencies.
Also, Customs is still apparently complaining about DEA, to the
point where the highest levels of these agencies are having some
real clashes. I understand there is even a disagreement within the
Justice Department as to who should be running the task force in
the field.
You start out with a task force proposal to coordinate research
and policy. You say you have complete control over the budgets of
the participating agencies, to really make the task force successful.
Yet then 3 years later, in the fiscal year 1984 budget proposal, the
administration gives back to Treasury budget authority over their
participation in the task force. Now the administration has intro-
duced task forces under the Vice President's Organized Crime Task
Force.
My question is
The Chairman. Your time is up.
Senator Biden. My time is up.
Well, let me ask one that is not for the record.
Who is in charge?
Mr. Giuliani. Well, Senator, first of all, the report in the New
York Times, at least the lead that you read, is entirely inaccurate.
The task forces are completely on schedule, and it is somewhat
frustrating, because from the very beginning, from the first
moment that this program was announced, back in October, it was
made very, very clear, by everyone, that it would take almost a full
year to get the task forces fully operational, and for a very good
reason. We were moving 1,000 to 1,500 agents into new work, and if
you did that precipitously, if you just moved those 1,000 or 1,500
agents into that new work immediately, they would have to drop
the other important things that they were doing, and law enforce-
ment would suffer tremendously, so rather than immediately
moving them over into the task forces as we announced in October,
we were going to ramp up the task forces.
They began in January, and they are now about one-third to
about one-half staffed, and they are entirely and completely on
schedule.
The Chairman. Senator Specter.
Senator Biden. I would like to submit the rest for the record, if I
may.
54
The Chairman. Without objection, that will be done.
Senator Biden. Good luck in your new job coordinating the task
force.
Mr. Giuliani. Thank you.
[The following was received for the record:]
55
Responses to Senator Biden's questions
regarding the death penalty
with respect to crimes under the federal criminal
code that would be punishable by death under the
Administration's Bill, has there been an increase
in such crimes other than the general rise in the
crime rate that specifically demonstrates the need
for a death penalty statute since the Supreme
Court's 1972 decision in Fut man?
As the question suggests, there has been a striking
increase in the crime rate in the United States over the past two
decades. This trend extends to homicide, the primary offense to
which a death penalty statute would, under certain circumstances,
be applicable. For example, the estimated rate of murder and
non-negligent manslaughter has nearly doubled since I960:
Estimated number and rate of murder and non-negligent
manslaughter in the United States known to police, 1960-
1979:1/
Number of Fate per
Year Offenses 10.000 Inhabitants
1960 9,110 5.1
1961 8,740 4.8
1962 8,530 4.6
1963 8,640 4.6
1964 9,360 4.9
1965 9,960 5.1
1966 11,040 5.6
1967 12,240 6.2
1968 13,800 6.9
1969 14,760 7.3
1970 16,000 7.9
1971 17,780 8.6
1972 18,670 9.0
1973 19,640 9.4
1974 20,710 9.8
1975 20,510 9.6
1976 18,780 8.8
1977 19,120 8.8
1978 19,560 9.0
1979 21,460 9.7
V U.S. Department of Justice, Sourcebook of Criminal Justice
Statistics 1981 293 (1982). ~
56
The number of defendants charged with homicide in federal
court over roughly the same period indicates a similar trend:
Number of defendants charged with homicide in United States
District Court, 1961-1981:2/ unitea estates
Number of
^^^^ Defendants Charged
1961 51
1962 fp
1963 ^i|
1964
1965
t3
53
1966 54
1967
53
1968 65
1969 57
1970 6^
1971
93
1972 85
1973 loS
1974 138
1975 138
1976 ill
1977
1978
1979
1980
153
159
150
170
1981 168
While a cursory comparison of these two sets of statistics
suggests that the increase in the number of federally punishable
homicides is greater than the increase in the rate of homicide
nationwide, absent a comprehensive analysis of truly comparable
data, we would refrain from concluding that the increase in
£/ Administrative Office of United States Courts, Federal Offenders
in the United States District Court, 1981, Table H-7
(Washington, D.C. 1982). It is our understanding that these
statistics represent defendants charged with a homicide
offense, per se, and thus would not include certain cases of
felony-murder, e.£. , a murder committed in the course of a
federal bank robbery, where the offense charged is the
underlying felony.
57
federally punishable homicides is significantly greater than the
already alarming national increase. However, we do not believe
that the propriety of a federal death penalty statute turns on
proof of a disparate increase in the rate of homicides over which
there is federal jurisdiction. Indeed, certain types of federal
homicides, for example assassination of the President or a
federal judge, would, we expect, occur with such infrequency that
the incidence of their commission would bear little relationship
to the national murder rate. The relative infrequency of the
commission of such murders in which there is a unusually strong
federal interest in prosecution, however, is no reason for
barring application of an appropriately severe sanction when
merited in a particular case.
What is the evidence that a federal death penalty
statute would diminish the incidence of crimes?
And what is your opinion of the conclusion that the
availability of the death penalty actually illicit
more violent crime by providing a public, dramatic
spectical of official violent homicide on the part
of the government?
Attempts to use methods of statistical analysis to
measure the deterrent effect of capital punishment have reached
differing conclusions and have been subject to attack with
respect to methodology. The published debate generated by
Professor Ehrlich's research on the deterrence question is
illustrative:
Ehrlich, "The Deterrent Effect of Capital Punishment," 65
American Economic Review 397 (1975).
Passell, "The Deterrent Effect of the Death Penalty: A
Statistical Test," 28 Stanford Law Review 61 (175).
Bowers and Pierce, "The Illusion of Deterrence in Issac
Ehrlich's Research on Capital Punishment," 85 Yale Law Journal
187 (1975).
25-694 0-84
58
Ehrlich, "Deterrence: Evidence and Inference," 85 Yale Law
Journal 209 (1975) .
Peck, "The Deterrent Effect of Capital Punishment: Ehrlich
and his Critics," 85 Yale Law Journal 359 (1976).
Ehrlich, "Capital Punishment and Deterrence: Some Further
Thoughts and Additional Evidence," 85 Journal of Political
Economy 711 (1977).
Some attempts to show a "brutalization" effect of capital
punishment (i^.e. , an increase in violent crime occasioned by an
execution) are summarized in Bowers and Pierce, "Deterrence or
Brutalization: What is the Effect of Executions?" 26 Crime and
Delinquency 453 (1980). The work cited in this article, however,
is less than persuasive. For example, failure to show an
increase in homicide immediately following an execution in one
study is reconciled with contrary results in other studies by
suggesting "delayed brutalization," and the authors themselves
cite serious methodological flaws in certain of the studies, even
though it is clear that they are strong proponents of the
"brutalization" theory.
3. Granting that the likelihood of executing someone
who IS actually innocent of the crime is small
given the elaborate, process of trial, appeals and
post-conviction remedies, doesn't it remain true
that none of our institutions are infalable and
that the occasional execution of an innocent pers6n
is a logical certainty? There have been numerous
news reports in recent years about convicted
murders who turned out to be innocent and were then
released. What has happened to the principle that
It is better that 10 guilty people go free than
that one innocent person be punished"?
In one example Freddie Pitts and Wilbert Lee
were sentenced to death in Florida in 1963
their execution was delayed because the
question of capital punishment was being heard
m the U.S. Supreme Court.
Meanwhile, another man confessed The
evidence pointed to his guilt. It still took
years of legal battle, until 1975, before the
governor s pardon came for Pitts and Lee.
59
Twelve yeais and 48 days alter the court had
ordered them executed, Freddie Pitts and
Wilbert Lee walked out of prison. Had the
question of the death penalty not been bef oi e
the courts--had their sentences been carried
out on schedule--Pitts and Lee would have died
innocent men.
They made an easy target for local
authorities. Despite a weak case, th
proseuctor had no trouble getting a
conviction.
The execution was delayed as the Supreme Court
once again heard a death penalty case. While
the four waited on death row, another man
confessed. He even drew a map of the murder
site.
Death is a punishment ^absolute. Final. There
are no more appeals. No reversals. It is an
irrevocable punishment carried out by a
criminal justice sytem that is far from
perfect. And can never be perfect, as long as
it is run by human beings. Because human
beings make mistakes.
What if these men had been executed? Would
anyone have come forth with new evidence?
Would anyone have spent years to prove their
innocence? What difference would a confession
have made? For how many innocent people has
the truth come too late?
Our criminal justice system is supposed to
insure against such injustice.
Certainly, it is impossible to construct a criminal
Justice system which would absolutely assure no possibility of
error. Nonetheless, even if some risk of error is inherent in
our system, where the death penalty is at issue, we must reduce
that risk of error as much as possible. This is the very reason
that additional safeguards, not applicable in ordinary criminal
cases, are included in our death penalty legislation to protect
against arbitrariness and the influence of prejudice.
60
4. Every last country in western Europe as well as
Canada and Mexico have abolished the death penalty,
despite their problems of crime and their greater
problems in some of those countries of terrorism
and political assassination. United Natins bodies.
Amnesty International, the Pope and other voices
worthy of respect, have called for the abolition of
capital punishment. We have' about 1,200 people on
death row now and are sentencing additionally some
250 people to death a year under state laws. Why
do you think the federal government should add to
that prospective blood bath, especially when the
death penalty has never been proven to deter crime?
We are aware that there are men of ability, goodwill,
and conscience who believe that it is never justified for society
to deprive an individual of life, however grave and despicable
may have been his crimes and however much a threat his actions
may pose to others in the community or to the survival of the
community itself. But while recognizing these views, this
Administration does not subscribe to them. Moreover, the
Administration's position is in accord with the views of the
majority of the American public. Since the Furman decision, more
than two-thirds of the State legislatures have enacted death
penalty laws designed to meet the constitutional requirements
articulated by the Supreme Court over the last decade, and
national public opinion polls consistently show that a large
majority of our citizens support death penalty laws.
5. Won't life in prison without the possibility of
parole be just as effective as in accomplishing the
goals of capital punishment — without risking the
death of an innocent human being?
We believe life imprisonment without the possibility of
parole would not, in certain cases, be as effective a punishment
as the death penalty. First, there are some offenses which are
so harmful and so reprehensible that not even life imprisonment
would represent an adequately just and proportionate response to
the defendant's crime. Second, with respect to certain crimes
involving calculation and premeditation, the death penalty, as a
more severe sanction, can be a more effective deterrent. Third,
capital punishment assures that a brutal murderer cannot again
61
take the life of an innocent victim. Proponents of the life
imprisonment alternative have asserted that it serves this
"incapacitation" purpose of sentencing equally as well as
imposition of the death penalty. While this may be true with
respect to protecting members of the public at large, it affords
no such protection to potential victims at the facility in which
the prisoner is incarcerated, victims who would include both
correctional officers and other inmates. Moreover, in the case
of a prisoner already under a life sentence, were the death
penalty unavailable, there would be no available sanction to
punish or deter his commission of another murder while in prison.
In the 50 years between 1930-1980, according to
justice department figures, there were 33 persons
executed by federal authorities, fewer than 1 a
year. Some of those offenders could no doubt have
been tried as well as under state laws, others were
executed under extremely controversial
circumstantes (for example, the Rosenburgs in the
1950's), at least 10 of the 33 were executed under
provisions that the U.S. Supreme Court has by now
defined as constitutionally impermissible (for
rape, armed robbery or kidnapping) . If the Federal
death penalty is going to be used so rarely,
doesn't this suggest that it is not needed at all?
And if it is going to be used at such a rate isn't
it ti ue that what ever detei rent effect some people
think capital punishment might have would not come
into play under federal statute?
6. Clearly, a federal death penalty statute would be
applicable in far fewer cases than would State death penalty
provisions. This is because the vast majority of first-degree
murders, the offenses for which the death penalty would be most
frequently applicable, occur in circumstances giving rise to
State, rather than federal, jurisdiction. The infrequency with
which a federal death penalty provision might be invoked (rela-
tive to the rate at which State death penalty provisions might be
applied) is, however, no justification for precluding application
of the sanction in appropriate federal cases. For example, cases
involving paid assassination of a federal judge or wartime
espionage are likely to be rare. Yet, under certain circum-
62
stances, these are the very sorts of offenses for which the death
penalty might be appropriate. The fact that such cases arise
infrequently is no more a justification for failing to provide
the opportunity for imposition of a proportionate punishment than
it would be for Congress to decline to provide federal jurisdic-
tion over these offenses. Congress has provided for federal
jurisdiction over these sorts of offenses because of the substan-
tial federal interests implicated, and vindication of these
interests requires tnat appropriate sanctions be available. The
suggestion that a federal death penalty is not necessary because
in particularly heinous cases we could decline prosecution in
favor of a State prosecution where the death penalty would be
available under the State's law, makes a mockery of the appro-
priate exercise of federal criminal jurisdiction and would
require us to abdicate the law enforcement responsibilities
conferred upon us by the Congress in the very sorts of cases
where the reasons for federal prosecution might be most com-
pelling. Moreover, the assumption that concurrent State
jurisdiction will always exist is unfounded. There are numerous
areas of exclusive federal jurisdiction in which the option of
State prosecution will not be present.
63
Sc'iiatof Bidoii's Questions on
Research and Statistics
Mi. Jensen, as I understand this proposal you would
consolidate the Bureau of Justice Statistics, National
Institute of Justice and the grant agency together
under an Assistance Attorney General. This Assistant
Attorney General would have final authority over
grants, staff and policy for all these agencies.
I have a real concern that the independence and
ability for the research and statistics programs to
provide objective information on crime is threatened
under this proposal. What is your opinion on that?
Can you assure this Committee that useful and
reliable information will continue and will not be
threatened by the transfer of funds from these
important programs to increase the pool of funds in the
grant program, should this new structure be
implemented?
Let me clarify my position on the independence
necessary for research and statistics. It is essential
that we have a strong research and statistic component
that is adequately funded and works in unison with the
funding and grant making agency so we can begin to find
out what works in fighting crime. Research and
evaluation must maintain a degree of automony so as to
be in a position to objectively tell us what our course
of action should be. We must avoid spenting limited
federal dollars on programs that don't work. The only
way we will know this is if there is good objective
data on the success or failure of these programs.
How much direct control over the operations of each
of these programs will the Assistant Attorney General
have?
Will he or she be experienced in the application of
crime statistics and research to make decisions about
the types of projects and studies to be funded by the
Bureau, of Justice Statistics and National Institute of
Just ice?
Responses to Senator Biden's questions regarding Research and Statistics:
Vfhile It is true that the Administration's proposal would
consolidate the National Institute of Justice and the Bureau of
Justice Statistics along with a new Bureau of Justice Programs
under the general authority of the Assistant Attorney General,
the day-to-day operations of these three Bureaus will be the sole
responsibility of the individual Bureau directors. As you know,
funds may not be transferred from research or statistics to
another function without prior Congressional approval for the
reprogrammlng. I do not envision the necessity for such a
request inasmuch as it has never arisen during the history of
agencies responsible for support of state and local criminal
Justice. The Administration has consistently supported the
research and statistics functions.
64
JUSTICE ASSISTANCE QUESTIONS
1. Mr. Attorney General, the bipartisan crime bill that the
President vetoed last January included a number of provisions
one of which was a Justice Assistance program. I assume that
was one provision you did not object to?
The justice assistance portion of H.R.3963 was the product of
last-minute efforts at compromise between the views of the
Senate, House and the Administration during the final hours
of the 97th Congress. Although well intentioned, the result
was a seriously deficient product which only marginally
reflected the streamlined program desired by all parties.
2. I understand that the Justice Assistance proposal in S.829 is
different from the provision agreed to in the bipartisan
crime package. Why is that?
As noted above, H.R.3963 fell far short of the objectives
Identified during the Senate and House committee hearings on
the Justice assistance proposals. It failed to focus Federal
financial assistance on violent and repeat offenders; it
would have permitted Federal funds to be used to pay for
state and local administrative costs; it would have continued
the fragmented and uncoordinated organizational arrangement;
and, it failed to Include the requested improvements in the
Public Safety Officers' Benefits program. S.829 is designed
to rectify those shortcomings while, at the same time,
incorporating the major characteristics of H.R.3963.
3. I understand Congressman Hughes' Justice Assistance bill is
pending floor action this week in the House. That bill is
very different from the bill you are proposing here. Can you
explain to me the difference in bills?
H.R.2175, as passed by the House, is very similar in most
respects to S.829. Both provide for block and discretionary
grant funding. Both seek to limit Federal funding to
programs or projects with a demonstrated track record of
success. Both seek to establish a program of emergency
Federal assistance. The Administration proposal sharpens the
focus of the Federal program on violent crime, repeat
offenders, victim/witness assistance and crime prevention,
and it also streamlines the organizational structure of the
research, statistical and financial assistance programs.
4. When we went to conference with the House in December, I was
concerned about protecting the independence of research and
statistics and believe we drafted a bipartisan bill that was
acceptable to both the House and Senate. Realizing that if
and when this bill is passed in the Senate it will go to
conference with Congressman Hughes' bill, I am curious why
you Just didn't go with the bipartisan language we all agreed
to in December?
Does the Justice Department have an objection to a substitute
amendment that contains the bipartisan language?
Because of the concerns noted in 1 and 2 above, the
Administration redrafted the troublesome portions of
H.R.3963 and submitted as Title VIII what we consider to be a
significantly improved proposal. The Department would
therefore strongly object to the substitution of language
from H.R.3963 of the 97th Congress.
65
The Chairman. Senator Specter.
Senator Specter. I would like to commend the Department of
Justice, and you gentlemen, for this package which you have put
together. It is a very large effort, and I am hopeful that we can
move it forward. I appreciate the fact that representatives from the
Department came to visit with me about it. There are quite a
number of parts of it, and I have a number of questions.
I am concerned that we move as much as we can as promptly as
we can. If we can move the entire package, and come to a resolu-
tion of the entire package, it is not obviously going to be something
that everybody in Congress will necessarily agree with, but I do
commend the Department for pushing ahead with it, and trying to
bring it to a rapid conclusion.
With respect to the bail provision, I think I know your position,
but I would like to broach that subject, since I have gotten that as-
signment from Senator Biden. I have concerns about the provisions
governing pretrial detention. It is a very complex matter, with
strong arguments on both sides, involving the need for the protec-
tion of the community, as opposed to the issue of constitutional
rights and the presumption of innocence.
I am concerned about a rule which permits pretrial detention for
as long as 90 days. I am frankly concerned about a rule that per-
mits detention as long as 60 days. It would be my hope that this
procedure could be utilized within a timeframe of 60 days.
We had hearings in the Appropriations Subcommittee of the Dis-
trict of Columbia last week, and noted the very small number of
applications made under that pretrial or preventative detention
procedure — something like 50 in the course of the year.
My question is why could it not be structured so that in those
few cases where defendants are held in custody, a severe change in
our procedure, they could not be brought to trial in a more prompt
period of time than 90 days?
Mr. Giuliani. Senator, the difference between 60 and 90 days is,
I think
Senator Specter. Is 30 days.
Mr. Giuliani. Is an important one, given the kinds of cases that
generally would be the ones in which you would have pretrial de-
tention in the Federal system.
Basically these are going to be drug cases. There will be some
violent crime cases on a sporadic basis, but in large measure, situa-
tions in which pretrial detention is going to be used in the Federal
system will be for the major defendants, in the largest drug cases,
and it could be difficult to bring those cases to trial within 60 days,
it is going to be difficult to do it within 90 days, although it will be
done.
You are not talking about a one-defendant, two-defendant case.
You are very often talking about a 13, 14 defendant case, in which
the 2 or 3 leaders of the drug operation would be the ones who
would be incarcerated pretrial if this bill becomes law, and very
often the people do not speak English, therefore, you need inter-
preters.
The trial is a very major undertaking, it is not just a one or two
defendant trial that could be tried quickly. So I could see some real
dangers in having a hard and fast 60-day rule. Although, on the
66
other side of it, The Speedy Trial Act that we now have a number
of years of experience with in the Federal system has not been a
tremendous burden for the Federal prosecutors to comply with. It
has been a much greater burden for defense lawyers, who more
often than not are the reasons why, in fact, in 80 percent, and 90
percent of the situations where there is delay, it is at the request of
the defense, not at the request of the Government.
So it is something that I would like to look into more carefully,
and normally I would agree with you. I think a case where we are
dealing with the kinds of crimes, for example, that you would basi-
cally be dealing with in the District of Columbia, or in a local juris-
diction, I would agree completely with you, that a 60-day limitation
would be the more appropriate one.
But the fear that I have is that what we would basically be deal-
ing with here are complex cases, and that difference of 30 days
could be a significant one, but I think it is something we should
look into more carefully, and I certainly agree with your concerns.
Senator Specter. Well, we will see what will happen with the
legislative result, and it may be that the 90-day rule prevails. If
that is so, I would hope that the Justice Department would take a
close look at the timing of those cases and, to the extent possible,
bring all those defendants to trial at the earliest possible date, per-
haps even in advance of 60 days.
But let us judge from the experience, if we can get it through to
see where we are heading, and in addressing this concern, to the
perspective U.S. attorney for the very important southern district
of Manhattan, it is a sounding which could be of some utility in a
very critical area.
I have expressed this view to the U.S. attorneys in Pennsylvania
and, wherever I have a chance, I will continue to do so.
When we talked about the package a few days ago, Mr. Giuliani,
we discussed the issue of juvenile coverage, and I have raised a
number of points with you and Mr. McConnell, that we wanted to
explore.
The chairman has asked me to preside over the hearings on May
19, and I have sent a letter to Attorney General Smith, asking that
the specifics be prepared. I will utilize that time, rather than take
time now, from this full committee hearing.
But I wanted to call that to your attention so that you might
make a special effort to see that we are in a position to explore
those issues on May 19.
Mr. Giuliani. I will. Senator.
Senator Specter. Mr. Jensen, first, I compliment you on your
designation for the Associate Attorney General's position.
One of the subjects we talked about the other day concerns the
seizure issue, and I have since gotten hold of the opinion of the
fifth circuit and noted that it was a 1980 decision, I would be inter-
ested to know if the Department of Justice has made an effort in
any other judicial forum, to have the good-faith rule carried for-
ward as a matter of judge-made case law?
Mr. Jensen. Yes, as a matter of fact, in the Illinois v. Gates case,
that Senator Biden alluded to, the Justice Department filed an
amicus curiae brief which fully supported the statement of the rea-
67
sonable good-faith test. So that argument was specifically made, it
was presented to the Court by the Solicitor General.
Senator Specter. In which Court was that?
Mr. Jensen. That was Illinois v. Gates.
Senator Specter. That was the Supreme Court?
Mr. Jensen. Yes.
Senator Specter. I am familiar with that, and we talked about it.
They may rule on this issue, or they may decide on other grounds.
Mr. Jensen. Yes, it is pending now.
Senator Specter. But has the issue been raised in any other cir-
cuit? Where does Illinois v. Gates come from, the Illinois appellate
courts?
Mr. Jensen. Yes, but it was a specific case, it was a case that was
filed in the Illinois courts, and came up to the Court through cer-
tiorari.
Senator Specter. But has the Justice Department endeavored to
have the good-faith rule adopted by any other circuit court, or U.S.
district court?
Mr. Jensen. We have raised that issue on several occasions, in
other circuits. It has not had another definitive ruling as was made
in U.S. V. Williams.
In many of these instances, there could be different kinds of
bases for the rulings, but there has been no other definitive ruling
by a circuit court on good faith.
Senator Specter. There is one other subject that I want to touch
upon very briefly.
Yesterday, I proposed an amendment to the budget resolution
that yesterday would direct some Federal funding toward construc-
tion of prisons, to be used for convicts sentenced under the State
habitual offender laws, or other State-enhanced statutes.
This is a bill that I introduced in the 97th Congress, S. 1989, and
a bill which has been reintroduced in the 98th Congress, as Senate
bill 58.
In the current budget resolution there is an allocation of some
$400 million, 750 classification funds, in excess of what the Justice
Department has asked for.
In the event that the Senate does not deem it wise to add $100
million, which I am asking for in this resolution, to be supplement-
ed in 2 outyears, would you consider it an appropriate use of funds
to direct some of the funding toward that objective? Before you
answer, I would like to say just a word or two about the proposi-
tion.
The Attorney General's Task Force has recommended $500 mil-
lion a year in assistance for overcrowding in State prisons. There
were, as I think you know, appalling statistics disclosed last year
about the overcrowded condition of the prison system in this
Nation, with some 42,000 additional inmates in custody, just during
the course of the past year.
I frankly have a sense that the national decrease in the crime
rate may be attributed to the increased incarceration. I would be
interested in your views on that.
Mr. Giuliani. Senator, I certainly would need more time to dis-
cuss it, and look at it, but there is no doubt that the first priority
in readjusting the criminal justice system has to be corrections.
68
I think it is something that we would be very interested in look-
ing at. I cannot give you a definitive answer, but if there is this
additional money, and there is a way in which we can use it to
assist in dealing with the overcrowding situation of prisons, as we
are trying to do with the Federal surplus property amendment that
IS in this package
Senator Specter. This committee has held extensive hearings on
the issue of career criminals. The feeling is that there may be
around 200,000 career criminals in this country— men, women who
have committed two, three or more burglaries or robberies, or
rapes. If we were to provide prison space for them, at about $5o',000
a cell, that would cost $10 billion.
I could not attend those hearings, because I was attending the
MX hearings, where they were talking about the $20 billion missile
system for which we cannot find housing, and the thought is on my
mind now, and I do not propose to house them in Federal pris-
ons
Senator Biden. Maybe if we put them together— the MX and the
career criminals.
Senator Specter. Get 200,000 birds
Senator Biden. Career criminals, that is right.
Senator Specter. Kill two birds with one stone, house 200,000
career criminals for the cost of one missile.
But my thought is that if we ever intend to get serious about the
problem of habitual offenders, and if we were to incarcerate those
200,000 in this country, based on the Commission on Criminal Jus-
tice Standards and Goals for 1973, to reduce violent crime by in
excess of 50 percent, that is a $10 billion expenditure which might
be well worth directing our attention to, and what I am trying to
do IS put a foot in the door, with a start of that program this year.
Thank you very much, Mr. Giuliani.
Thank you, Mr. Chairman.
The Chairman. Mr. Jensen, I have just one question here, and
then I am going to turn this hearing over to Senator Specter.
Is it not true that a reasonable good faith belief in the lawfulness
of the conduct is a well established defense for a police officer who
sues in a civil case for violation of constitutional rights?
Mr. Jensen. In constitutional tort cases, that is correct. Senator.
The Chairman. Now, our next witness is Mr. John Walker, from
the Department of Treasury.
Mr. Walker, we are very pleased to have you here, and I have
another engagement. I am going to ask Senator Specter to continue
the hearing.
You have a long statement. I believe you can summarize it.
STATEMENT OF JOHN M. WALKER, JR.
Mr. Walker. Thank you very much, Mr. Chairman.
Yes, I would like to ask that my complete statement be made a
part of the record, and then I would like to summarize from it.
The Chairman. Without objection, that will be done.
Mr. Walker. Mr. Chairman and members of the subcommittee,
thank you for affording me the opportunity to present the views of
the Treasury Department on the proposed Comprehensive Crime
69
Control Act of 1983. From Treasury's perspective, this proposed leg-
islation would provide urgently needed reforms that are critical to
our law enforcement efforts. We strongly support enactment of this
legislation as a package because of the importance of addressing
deficiencies in our criminal justice system in a systematic and com-
prehensive manner. I believe that this bill achieves this goal and
will, on the whole, make a significant contribution to our Nation's
struggle against crime.
In my testimony today, I will concentrate on those provisions
that are of particular importance to the enforcement efforts of the
Treasury Department, including those in which Justice and Treas-
ury currently share joint law enforcement responsibilities.
This bill would strengthen Treasury law enforcement by stream-
lining criminal and civil forfeiture procedures, improving enforce-
ment against currency violations under the Bank Secrecy Act, miti-
gating liability of law enforcement officers under the Federal Tort
Claims Act and improving enforcement against forged endorse-
ments of Federal securities, bank fraud, bribery of bank officers,
and receipt of stolen bank property. I will address each of these
topics separately.
Turning to the criminal and civil forfeiture provisions under title
IV. By revising the laws governing criminal and civil forfeiture,
this bill would increase the effectiveness of an essential Federal
weapon against drug trafficking and organized crime. This expand-
ed forfeiture authority will greatly assist the operations of the
Drug and Organized Crime Task Forces announced by the Presi-
dent last October. Seizure of the ill-gotten proceeds of drug traffick-
ing deprives the trafficker of the fruits of his crimes and the finan-
cial base for further drug dealing.
Today, criminal forfeitures can occur only when the enterprise
requirements under the Racketeer-Influenced and Corrupt Corrupt
Organizations and the Continuing Criminal Enterprise statutes are
met. Title IV of the bill would strengthen the criminal forfeiture
power by causing it to be triggered by a simple felony drug offense.
It would then provide for the forfeiture of all proceeds from drug
offenses and property used to commit them. The bill would thus
provide a valuable complement to the other statutory enforcement
measures, including the Bank Secrecy Act and relevant provisions
of the Internal Revenue Code, that are designed to deprive drug
traffickers of the assets they need to continue their illicit oper-
ations.
Additionally, several new provisions will bring greater effective-
ness to the Federal criminal forfeiture process in general. These in-
clude new authority for courts to enter restraining orders against
the transfers of forfeitable assets during the preindictment stages
of a case. In instances where a restraining order may be insuffi-
cient, such as where property is easily moved or concealed, the
Government would be empowered to obtain a warrant authorizing
seizure of the property. Courts would also be able to void transfers
that have already occurred and, in some circumstances, order the
forfeiture of substitute assets.
The bill would also improve the method of payment for expenses
incurred by the Government in conducting forfeiture actions by es-
70
tablishing forfeiture funds in the Departments of Justice and
Treasury.
The establishment of these funds would allow the Government to
conduct forfeiture actions with much greater dispatch while pro-
moting overall cost savings. Better storage and maintenance of
seized property would result, because Justice and Treasury would
be able to balance forfeiture expenses with forfeiture proceeds.
Senator Specter [presiding]. How much do you think it likely
that the Government would take in on forfeiture proceeds, Mr.
Walker?
Mr. Walker. Well, I think that we can estimate that with for-
feiture proceeds, the ability to seize and to forfeit and seize and sell
administratively, we are talking in the many tens of millions of
dollars, perhaps hundreds of millions of dollars.
Senator Specter. To what extent are there any proceeds for for-
feiture available at the present time?
Mr. Walker. Well, there are not. The forfeiture proceeds today
go into the general fund. So they are not available now for the use
in defraying expenses of forfeiture, or for paying for the budgets of
the law enforcement agencies involved.
Senator Specter. How much money was seized as a result of for-
feitures, say, in the last year?
Mr. Walker. Well, I can supply that figure in some detail for
you, for the record. But in terms of the currency forfeitures, we are
talking in terms of many tens of millions of dollars, perhaps, $50
million, perhaps more. We will supply that.
Senator Specter. We would be interested to know that.
Mr. Walker. Yes.
[The following was subsequently received for the record:]
The total amount of currency and property seized and forfeited in fiscal year 1982
is not precisely known. However, a joint study team of the U.S. Department of Jus-
tice estimate that property appraised at approximately $245 million was subject to
judicial forfeiture in fiscal 1982. The study did not include an estimate of the total
amount of currency subject to forfeiture.
In addition, the magnitude of combined civil and judicial forfeiture can be seen in
the following statistics from Customs and DEA. For fiscal year 1982, U.S. Customs
reported a total of $239,912,507 in currency and property seized and subject to for-
feiture as a result of its use in violation of the laws enforced by Customs. These
assets were in the following categories:
Monetary instruments $32,757,121
Vehicles 35,935,720
Aircraft 34,742,505
Vessels 44,461,893
General merchandise 92,015,268
Total 239,912,507
DEA reported a total figure of $106,656,948 in currency and property seized and
subject to forfeiture. A breakdown according to the type of asset was not available
but is currently in preparation by DEA.
Senator Specter. Mr. Walker, how, if at all, does this forfeiture
bill differ from the bill which was enacted, was passed, rather, by
the Congress last year, part of the seven point package which the
President vetoed?
Mr. Walker. I think, in substance, it contains most of the same
provisions. But substantively, we do not have a major difference
there.
71
Senator Specter. No major differences?
Mr. Walker. Right.
Senator Specter. Last year, when we were negotiating this, at
the very end, there had been a representation that the Justice De-
partment wanted something substantially stronger than what had
been passed, and there was some discussion with Congressman
Hughes, in the House, on this.
Mr. Walker. Senator Specter, I would like to clarify my state-
ment.
I was speaking largely from the Customs forfeiture provisions, in
terms of Treasury's interests, but I would like Mr. Jensen or Mr.
Giuliani to address the Justice Department's views with regard to
your last question.
Mr. Jensen. Senator, if I may, there were some significant areas
that the Justice Department wanted to see in the forfeiture realm
that were not part of the legislation that was passed.
For example, it did not deal with the issues of profits and pro-
ceeds in RICO cases, for example. That was not part of the bill that
was passed, and that was a thing that we sought.
Senator Specter. The House version did not have RICO forfeit-
ure?
Mr. Jensen. No. And it did not deal with another major issue,
and that is when the assets are dissipated, and you do have an abil-
ity to seek forfeiture, and you can trace proceeds and profits, and
get an order about that, but they have now been dissipated. Under
•the bill that we suggested, you could go after substitute assets, and
that is not a part of the bill that was passed. Those are very major
portions of the Department's position that were not within the bill.
Mr. Giuliani. Mr. Chairman, it was part of the bill that was
passed by the Senate, or favored by this committee, essentially Sen-
ator Biden's version of it that we supported, and the provisions
that Mr. Jensen mentioned were not part of the bill that eventual-
ly passed in the Congress.
Senator Specter. You may proceed.
Mr. Walker. In addition to the direct expenses of forfeiture, the
forfeiture funds would also provide for payment of compensation to
informants. For example, under the existing section 619 of the
Tariff Act, a Treasury informant whose information leads to a seiz-
ure and forfeiture may receive 25 percent of the net amount recov-
ered, not to exceed $50,000. The $50,000 maximum amount, estab-
lished by law in 1935, long before the era of multimillion-dollar
drug deals accompanied by gangland slayings of suspected inform-
ants, is no longer adequate for this purpose. This bill would in-
crease the maximum amount threefold.
Part D of title IV is of particular interest to Treasury and the
U.S. Customs Service. This part would amend the Tariff Act of
1930 to appreciably streamline the procedures for seizure and civil
forfeiture of property under the customs laws. One change would
make administrative forfeiture proceedings available in any forfeit-
ure involving conveyances used to transport illicit drugs, without
limitation as to the value of the conveyance.
It is clear, on the other hand, that administrative forfeiture is
far less costly and time-consuming, both for the Government and
for interested parties. This bill would accordingly extend its appli-
72
cability in two additional ways. First, administrative forfeiture
could be used for any seized merchandise for which importation is
prohibited, without regard to value.
Second, for all other property, it could be used if the value of the
seized property did not exceed $100,000. I want to stress that the
rights of legitimate claimants, including lienholders, would in no
way be infringed by these legislative changes. Interested parties
would retain the right to have the ownership of the property judici-
ally determined, which they could exercise by merely posting a
bond and thus requiring the Government to initiate a judicial for-
feiture proceeding.
Taken together, these legislative changes in the criminal and
civil forfeiture laws would increase the efficiency of the forfeiture
process, conserve judicial resources, promote overall Federal law
enforcement, and contribute to better law enforcement at the State
and local level. Most significantly, they would provide strong new
sanctions to counter the menace of drug trafficking and the crimes
related to it.
Mr. Chairman, turning to the currency violations under the
Bank Secrecy Act, which Treasury is vitally interested in, I would
like to address the legislative changes proposed by title XII of the
bill.
As you know, Mr. Chairman, the enforcement of currency report-
ing requirements under the Bank Secrecy Act is critical to this Na-
tion's battle against drug trafficking and organized crime.
As I testified last March 15, before the Subcommittee on Investi-
gations of the Senate Governmental Affairs Committee, the track-
ing of unusual cash flows that is made possible by the act's report-
ing requirements frequently leads to the identification and prosecu-
tion of large criminal organizations. However, as I also indicated at
that time. Treasury's experience in the enforcement of the act has
pointed to the need to strengthen some of its provisions. This bill
responds to that need and I believe that the revisions it proposes
will overcome many of the statutory weaknesses that currently are
allowing some transactions, particularly international transactions,
to go unreported.
First, the revisions contained in title XII of this bill will raise the
criminal penalty for willful violation of domestic currency report-
ing requirements from the present misdemeanor level to the felony
level, with an authorized 5-year imprisonment and $50,000 fine. We
believe that this level of punishment is appropriate given the seri-
ousness of these offenses and their established relationship to drug
trafficking.
The second change would amend the Act to provide that an at-
tempt to transport, as well as the actual transportation of unre-
ported currency or monetary instruments into or out of the United
States, would be a violation punishable under title 31. This amend-
ment would clarify an uncertainty in existing law that has caused
a few courts to conclude that the currency or monetary instru-
ments must physically be outside of the United States before the
law is violated. By that time, the offender is beyond our jurisdic-
tion and hence not subject to Federal arrest authority. Another
amendment would raise the amount covered by the reporting re-
quirement for importation and exportation of currency and mone-
73
tary instruments from $5,000 to $10,000. This amendment will ease
the reporting requirement on legitimate international travelers
without adversely affecting the detection of criminal activity.
Title XII of this bill revises the search provisions of the Bank Se-
crecy Act to authorize customs officers to conduct a warrantless
search of any person, vehicle, or container entering or leaving the
United States, if the officer has reasonable cause to believe cash or
monetary instruments are being transported without the filing of
required reports. While this authority is available for inbound
border searches and for outbound border searches involving mer-
chandise, most courts have not extended it to cover outbound
searches incident to suspected currency violations.
There are several other important amendments proposed in title
XII. One of them would authorize the payment of awards for per-
sons who provide information that leads to a fine, civil penalty, or
forfeiture under the currency reporting laws. The amount is limit-
ed to one-fourth of any recovery and may not exceed $150,000.
While this may seem to be a high maximum amount, it has to be
viewed in light of the huge amounts of currency typically involved
in these cases.
Mr. Chairman, I might just report that as I was coming up here
today we were informed that as a part of Operation Greenback
down in south Florida, our agents had seized $4 million. This gives
you some idea of the magnitude of the currency involved in these
cases.
Senator Specter. Mr. Walker, I would like to interrupt you for a
minute, if I may, before you proceed. I am going to have to depart
here in just a minute. But one question that I would like to broach
with you this morning is the subject of the drug coordinator— part
of the legislative package passed by the Congress last year— the
principal reason for the President's veto of the seven part package.
I start by expressing my appreciation to you for your cooperation
in analyzing that with me, and others last year, on behalf of the
Treasury Department.
My question is. How are things going now with respect to overall
coordination of the attack on the drug problem, as seen from the
perspective of the Treasury Department?
Mr. Walker. Mr. Chairman, I feel that the coordination today is
better than it has ever been. I might report that
Senator Specter. How is the coordination implemented?
Mr. Walker. Since we talked, the President announced the es-
tablishment of the National Narcotics Border Interdiction System,
headed by the Vice President, and under the leadership, on an
operational basis, of Admiral Murphy, who is the Vice President's
Chief of Staff That office is now providing senior executive super-
vision and coordination of the interdiction effort that Treasury is
so vitally interested in. This includes the coordination of the re-
sources of the Defense Department, the Coast Guard and the Cus-
toms Service, as well as Justice agencies. The Department of State
is also respected in this effort.
Senator Specter. Does the situation ever arise where one depart-
ment, as a practical matter, has to tell another department what to
do, or issue an order, or have some controversy between two major
departments working on the drug problem?
25-694 0-84
74
Mr. Walker. Well, there are circumstances, obviously, where de-
partments may differ, but the mechanism that is in place right
now is to use the President himself, as his authority has been dele-
gated down to the Vice President, and through him to Admiral
Murphy, to resolve disputes of this kind. So far we have not had
any problems with this.
Senator Specter. Thank you very much.
Senator Biden [presiding]. Thank you.
I have questions. If you want to complete your testimony at this
point, please continue.
Mr. Walker. I think I can summarize it pretty quickly.
Other changes in the Bank Secrecy Act would add currency vio-
lations to the list of racketeering activities under the Racketeer-In-
fluenced and Corrupt Organizations Act, or RICO. This result
would allow these offenses to serve as the predicate for a RICO
prosecution. The final change would add currency offenses to the
list of crimes for which a court order authorizing electronic surveil-
lance may be obtained. This amendment recognizes that currency
laws are frequently violated by persons involved in major crimes,
but also that the substantive nature of these crimes is frequently
unknown when the investigation commences.
Mr. Chairman, each of these amendments to the laws governing
currency and foreign transactions will, we believe, improve the
tools of our enforcement effort against drug trafficking and orga-
nized crime and complement the increased resources we are devot-
ing to this effort
Mr. Chairman, on another issue, and one that is critical to all
Federal law enforcement, the Treasury Department strongly sup-
ports the amendments that title XIII of this bill would make in the
Federal Tort Claims Act. Under present law as articulated in the
Bivens case, a Federal law enforcement official can be held person-
ally liable for conduct occurring within the scope of his office or
employment that later turns out to be a violation, even though the
official believed his conduct to be permissible.
Basically, these amendments would substitute the U.S. Govern-
ment as the defendant in a lawsuit against a law enforcement
agent or officer for a constitutional tort alleged to have been com-
mitted by the agent or officer acting within the scope of his office
or employment.
'-■ The threat of personal liability today hangs like a Damocles
sword over the heads of law enforcement officials and has inhibited
them from taking an aggressive approach in enforcing the law. The
fact that these suits often turn out to lack merit does not affect the
need for this legislation; as much as the threat of liability, it is the
threat of the lawsuit itself, with all of its attendant time, expense
and uncertainty, that inhibits proper enforcement conduct.
Title XIII would make the United States liable for all constitu-
tional torts committed by its employees. Successful litigants would
be compensated with minimum liquidated damages of $1,000 or, in
the case of continuing torts, $100 per day, up to $15,000. Litigants
would also be entitled to any actual damages that they could estab-
lish. In the litigation, the United States would have available to it
all of the defenses that would have been available to the employee.
75
Even with governmental liability for these torts, deterrence
against the commission of constitutional torts of the type subject
today to Bivens suits would remain. Not only would there be the
exposure of the public proceedings, but disciplinary action would
also be triggered under the provisions of this bill.
In all, the mechanism that title XIII would put into place would
uphold the rights of litigants and deter unconstitutional conduct.
At the same time, it would insure that law enforcement officers are
not unfairly and unduly inhibited in performing their official
duties.
Mr. Chairman, Treasury is also vitally interested in the provi-
sions of the bill set forth in title XV. I will not go into them in
great detail now, but these deal with the question of forged en-
dorsements of Federal securities, bank fraud, bank bribery, and re-
ceipt of stolen bank property.
Mr. Chairman, again, I appreciate the opportunity to appear
before you and members of this committee to express Treasury's
strong support for passage of the Comprehensive Crime Control
Act of 1983. It is, we believe, a legislative package that will
strengthen Treasury law enforcement as it provides long-needed
remedies for Federal law enforcement in general.
Senator Biden. Thank you very much.
[The prepared statement of John Walker follows:]
76
Prepared Statement of John M, Walker, Jr.
Mr- Chairman and Members of the Subcommittee:
Thank you for affording me the opportunity to present the
VIEWS of the Treasury Department on the proposed Comprehensive
Crime Control Act of 1985. From Treasury's perspective, this
proposed legislation would provide urgently needed reforms that
ARE CRITICAL TO OUR LAW ENFORCEMENT EFFORTS- We STRONGLY SUPPORT
ENACTMENT OF THIS LEGISLATION AS A PACKAGE BECAUSE OF THE
IMPORTANCE QP ADDRESSING DEFICIENCIES IN OUR CRIMINAL JUSTICE
SYSTEM IN A SYSTEMATIC AND COMPREHENSIVE MANNER- I BELIEVE THAT
THIS BILL ACHIEVES THIS ROAL AND WILL, ON THE WHOLE, MAKE A SIGNI-
FICANT CONTRIBUTION TO OUR NATION'S STRUGGLE AGAINST CRIME- !n MY
testimony today, i will concentrate on those provisions that are
of particular importance to the enforcement ffforts of the treasury
riepartment, including those in which justice and treasury currently
share joint law enforcement responsibilities-
This bill would strengthen Treasury law enforcement by stream-
lining CRIMINAL AND CIVIL FORFEITURE PROCEDURES, IMPROVING ENFORCE-
MENT against currency violations UNDER THE BANK SECRECY ACT,
mitigating liability of law enforcement officers under the federal
Tort Claims Act and improving enforcement against forged endorse-
ments OF Federal securities, bank fraud, bribery of bank officers,
and receipt of stolen bank property- I WILL ADDRESS EACH OF THESE
topics separately-
Criminal and Civil Forfeiture
By revising the laws governing criminal and civil forfeiture,
THIS BILL would INCREASE THE EFFECTIVENESS OF AN ESSENTIAL FEDERAL
WEAPON AGAINST DRUG TRAFFICKING AND ORGANIZED CRIME- ThIS EXPANDED
forfeiture authority will greatly assist the operations of the
'Irug and Organized Crime Task Forces announced by the president
LAST October- Seizure of the ill-gotten proceeds of drug traffick-
ing DEPRIVES THE TRAFFICKER OF THE FRUITS OF HIS CRIMES AND THE
financial base for further drug dealing-
Today, criminal forfeitures can occur only when the enterprise
requirements under the racketeer- influenced and corrupt organiza-
TIONS AND THE Continuing Criminal Enterprise statutes are met-
77
Title IV of the rill would strengthen the criminal forfeiture
power ry causing it to rf triggered ry a single felony drug offensf.
It WOULD THEN PROVIDE FOR THE FORFEITURE OF ALL PROCFFDS FROM
DRUG OFFENSES AND PROPERTY USED TO COMMIT THEM- ThE RILL WOULD
THUS PROVIDE A VALUABLE COMPLEMENT TO THE OTHER STATUTORY ENFORCE-
MENT MEASURES, INCLUDING THE "ANK SeCRECY AcT AND RELEVANT
provisions of the internal revenue co^f , that arf designed to
deprive drug traffickers of the assets they need to continue their
illicit operations-
Additionally, several new provisions will rring greater
effectiveness to the federal criminal forfeiture process in
general- these include new authority for courts to enter restrain-
ing orders against the transfers of forfeitable assets during the
PRE- INDICTMENT STAGES OF A CASE. In INSTANCES WHERE A RESTRAINING
order may be insufficient, such as where property is easily moved
or concealed, the government would re empowered to obtain a warrant
authorizing seizure of the property- courts would also be able to
void transfers that have already occurred and, in some circum-
stances, order the forfeiture of substitute assets -
The bill would also improve the method of payment for expenses
INCURRED by THE GOVERNMENT IN CONDUCTING FORFEITURE ACTIONS BY
establishing FORFEITURE FUNDS IN THE 'DEPARTMENTS OF JUSTICE AND
Treasury- In the Justice Department, the Drug Assets Forfeiture
Fund would contain the proceeds from forfeitures of drug-related
assets- In Treasury, the Customs Forfeiture Fund would contain the
PROCEEDS from the DISPOSITION OF AMY PROPERTY FORFEITED UNDER THE
LAWS ENFORCED BY THE CUSTOMS 'SERVICE, INCLUDING CURRENCY AND MONETARY
INSTRUMENTS FORFEITED UNDER THE "ANK !^ECPECY AcT - FACH OF TH^SE
FUNDS WOULD RE ESTABLISHED ON A FOUR-YEAR TRIAL BASIS, WITH MAXIMUM
PAYMENTS AUTHORIZED FOR EACH FISCAL YEAR- At THE END OF FACH
Fiscal Year, any amount in the funds that exceeds the appropriated
amounts for that year would be deposited in the i^enepal f^und of the
U-S- Treasury-
The establishment of these funds would allow the f^OVERNMENT TO
conduct FORFEITURE ACTIONS WITH MUCH GREATER DISPATCH WHILE PROMOTING
OVERALL COST SAVINGS- PeTTER STORAGE AND MAINTENANCE OF SEIZED
PROPERTY WOULD RESULT, BECAUSE JUSTICE AND TREASURY WOULD RE ABLE
78
ro BALANCE FORFEITURE EXPENSES WITH FORFEITURE PROCEEDS • In THE
Customs Service, the present procedure is harmful to its law
enforcement mission since forfeiture expenses tend to rfduce funds
AVAILABLE FOR DIRECT LAW ENFORCEMENT PURPOSES- In ADDITION, THE
present procedure, since it entails separate accounting for each
individual forfeiture, is inefficient and unnecessarily burdensome-
Under the new funds. Justice and Treasury would avoid these needless
complications; yet overall accountability to the congress would be
retained, through the annual reporting reouirfments provided by the
BILL- The PROVISIONS ESTABLISHING THESE FUNDS AND RETAINING
accountability to the congress reflect the recommendations made in
the recent draft rao study on the disposition of property seized by
Federal law enforcement agencies-
In addition to the direct expenses of forfeiture, the forfeiture
FUNDS would also PROVIDE FOR PAYMENT OF COMPENSATION TO INFORMANTS-
For EXAMPLE, UNDER THE EXISTING §619 OF THE TARIFF ACT, A TREASURY
informant whose information leads to a seizure and forfeiture may
receive 25% of the net amount recovered, not to exceed $50,000-
The $50,000 maximum amount, established by law in 1935, long before
THE era of multi-million DOLLAR DRUG DEALS ACCOMPANIED BY GANGLAND
SLAYINGS OF SUSPECTED INFORMANTS, IS NO LONGER ADEQUATE FOR THIS
PURPOSE- This bill would increase the maximum amount threffold-
Other forfeiture provisions in the bill will promote assistance
by, and cooperation with, other Federal, state, and local law
enforcement agencies- Both Justice and Treasury would be authorized
TO transfer forfeited property to another Federal agency or to any
state or local law enforcement agency that participated in the
CASE that resulted IN THE SEIZURE OR FORFEITURE- MndER PRESENT
LAW AND GSA REGULATIONS, IT IS VERY DIFFICULT FOR AN AGENCY PROVIDING
ASSISTANCE IN LAW ENFORCEMENT TO OBTAIN USE OF THE PROPERTY SEIZED-
ThIS IS UNFORTUNATE, BECAUSE A LARGE NUMBER OF FEDERAL SEIZURES
AND FORFEITURES ALSO INVOLVE STATE AND LOCAL CRIMINAL INVESTIGATIONS
AND PROSECUTIONS, AND THEREBY IMPOSE A SUBSTANTIAL BURDEN ON STATE
AND LOCAL RESOURCES- In ADDITION, OTHER FEDERAL AGENCIES MAY, IN
MANY INSTANCES, BE ABLE TO BENEFIT FROM PARTICULAR PROPERTY OBTAINED
THROUGH A FORFEITURE PROCEEDING-
1
79
SfCTION ^(18 WOULD FURTHER AMFND THE TARIFF ACT TO AUTHORIZE
THE Secretary of the Treasury to discontinue any forfeiture
PROCEEniNG IN FAVOR OF THE INSTITUTION OF STATE OR LOCAL FORFFITlfE
PROCEEDINGS, UNDER APPLICABLE STATE AND LOCAL FORFEITURE LAWS •
Part D of Title IV is of particular interest to Trfasury and
THE United States Customs Service- This part would amend thf Tariff
Act of 1<i?0 to appreciably streamline the procedures for seizure
and civil forfeiture of property under the Customs laws- One
change would make administrative forfeiture proceedings available
IN any forfeiture involving conveyances used to transport illicit
drugs, without limitation as to the value of the conveyancf-
Under present law, any property seized, including conveyances
used in drug trafficking, must be disposed of through judicial
forfeiture if the value of the property is greater than $in,nr)0-
Because the number of seizures of conveyances by Customs has
increased exponentially in recent years, this limitation has led to
AN enormous backlog OF JUDICIAL FORFEITURE CASES- It HAS ALSO
CREATED A MAJOR PROBLEM OF STORAGE FOR SEIZED CONVEYANCES, WHICH
IN TURN HAS LED TO UNNECESSARY COSTS FOR PROLONGED STORAGE, AND
FREQUENTLY TO PHYSICAL DETERIORATION OF THE PROPERTY INVOLVED- In
Fiscal Year 1982, Customs seized approximately 6,70n conveyances,
WITH A TOTAL VALUE OF $114 MILLION- ThE CONVEYANCES SEIZED WERE
WORTH, ON THE AVERAGE, APPROXIMATELY $17,00(1. ThE AVERAGE VESSEL
WAS WORTH $89,0n0, AND THE AVERAGE AIRCRAFT WAS WORTH $168,000-
It is APPARENT FROM THESE FIGURES THAT THE EXISTING DOLLAR LIMITATION
ON ADMINISTRATIVE FORFEITURE, GIVEN THE EFFECTS OF INFLATION AND THE
ENORMOUS RESOURCES OF THE DRUG SMUGGLER, IS NOW OF LITTLE USEFUL-
NESS IN THE PROMPT AND EFFICIENT DISPOSITION OF THE VAST MAJORITY
OF FORFEITURE CASES-
IT is clear, on the OTHER HAND, THAT ADMINISTRATIVE FORFEITURE
IS FAR LESS COSTLY AND TIME-CONSUMING, BOTH FOR THE POVERNMENT AND
FOR INTERESTED PARTIES- THIS BILL WOULD ACCORDINGLY EXTEND ITS
APPLICABILITY IN TWO ADDITIONAL WAYS- FiRST, ADMINISTRATIVE
FORFEITURE COULD BE USED FOR ANY SEIZED MERCHANDISE FOR WHICH
IMPORTATION IS PROHIBITED, WITHOUT REGARD TO VALUE- SECOND, FOR
ALL OTHER PROPERTY, IT COULD BE USED IF THE VALUE OF THE SEIZED
\
80
property did not exceed $100,000. 1 want to stress that the rights
of legitimate claimants, including lienholders, would in no way be
infringed by these legislative changes- interested parties would
retain the right to have the ownership of the property judicially
determined, which they could exercise by merely posting a rond and
thus requiring the government to initiate a judicial forfeiture
proceeding-
This bill would also change the bond requirement, to discourage
FRIVOLOUS suits AND TO MORE ACCURATELY REFLECT THE COSTS TO THE
Government of pursuing a judicial forfeiture- The present bond
AMOUNT, $250, dates BACK TO 18'»'4, WHEN IT REPRESENTED TWO-AND-A-HALF
TIMES THE $100 LIMIT ON ADMINISTRATIVE FORFEITURE- ThE BILL WOULD
establish a bond amount of the lesser of $5000 or 10?! of the value
of the property, but in no event less than $250- however, it should
be noted that under existing customs procedures, persons upon whom
the bond requirement would pose an economic hardship may request
waiver of the bond by completing an affidavit on financial inability-
customs would, of course, retain this procedure under the new bond
requirements-
Taken TOGETHER, THESE LEGISLATIVE CHANGES IN THE CRIMINAL AND
CIVIL FORFEITURE LAWS WOULD INCREASE THE EFFICIENCY OF THE FORFEITURE
PROCESS, CONSERVE JUDICIAL RESOURCES, PROMOTE OVERALL FEDERAL LAW
ENFORCEMENT, AND CONTRIBUTE TO BETTER LAW ENFORCEMENT AT THE STATE
AND LOCAL LEVEL- MoST SIGNIFICANTLY, THEY WOULD PROVIDE STRONG
NEW SANCTIONS TO COUNTER THE MENACE OF DRUG TRAFFICKING AND THE
CRIMES RELATED TO IT-
CuRRENCY Violations Under the Bank
Secrecy ^
i would now like to address the legislative changes proposed
BY Title XII of this bill- Mr- Chairman, as you know, the enforce-
ment OF currency reporting requirements under the Bank Secrecy Act
IS critical to this nation's battle against drug trafficking and
organized crime- As I testified last March 15, before the Subcom-
mittee ON Investigations of the Senate Governmental Affairs Committee,
the tracking of unusual cash flows that is made possible by the
Act's reporting requirements frequently leads to the identification
AND prosecution OF LARGE CRIMINAL ORGANIZATIONS- HOWEVER, AS I
81
ALSO INDICATED AT THAT TIME, TrfaSURY'S EXPERIENCE IN THE ENFORCE-
MENT OF THE Act has POINTED TO THE NEED TO STRENGTHEN SOME OF ITS
PROVISIONS- This bill responds to that need and I belifve that
THE REVISIONS IT PROPOSES WILL OVERCOME MANY OF THE STATUTORY
WEAKNESSES THAT CURRENTLY ARE ALLOWING SOME TRANSACTIONS, PARTICULARLY
INTERNATIONAL TRANSACTIONS, TO GO UNREPORTED-
First, the revisions contained in Title Xll of this bill will
RAISE THE CRIMINAL PENALTY FOR WILLFUL VIOLATION OF DOMESTIC
CURRENCY REPORTING REQUIREMENTS FROM THE PRESENT MISDEMEANOR LEVEL
TO THE FELONY LEVEL, WITH AN AUTHORIZED FIVE-YEAR IMPRISONMENT AND
^50,000 FINE- We BELIEVE THAT THIS LEVEL OF PUNISHMENT IS APPRO-
PRIATE GIVEN THE SERIOUSNESS OF THESE OFFENSES AND THEIP ESTABLISHED
RELATIONSHIP TO DRUG TRAFFICKING-
The SECOND CHANGE WOULD AMEND THE ACT TO PROVIDE THAT AN ATTEMPT
TO TRANSPORT, AS WELL AS THE ACTUAL TRANSPORTATION OF UNREPORTED
CURRENCY OP MONETARY INSTRUMENTS INTO OR OUT OF THE UNITED STATES,
WOULD BF A VIOLATION PUNISHABLE UNDER TiTLE "^1- THIS AMENDMENT
WOULD CLARIFY AN UNCERTAINTY IN EXISTING LAW THAT HAS CAUSED A FEW
COURTS TO CONCLUDE THAT THE CURRENCY OR MONETARY INSTRUMENTS MUST
PHYSICALLY BF OUTSIDE OF THE UNITED STATES BEFORE THE LAW IS
VIOLATED- By THAT TIME, THE OFFENDER IS BEYOND OUR JURISDICTION
AND HENCE NOT SUBJECT TO FEDERAL ARREST AUTHORITY- ANOTHER AMEND-
MENT WOULD RAISE THE AMOUNT COVERED BY THE REPORTING REQUIREMENT
FOR IMPORTATION AND EXPORTATION OF CURRENCY AND MONETARY INSTRUMENTS
FROM $5,000 TO $10,000- This amendment will ease the reporting
requirement on legitimate international travelers without adversely
affecting the detection of criminal activity-
tltle xii of this bill revises the search provisions of the
Bank Secrecy Act to authorize Customs officers to conduct a warrant-
less SEARCH of any PERSON, VEHICLE OR CONTAINER ENTERING OR LEAVING
THE United States, if the officer has reasonable cause to believe
CASH OR MONETARY INSTRUMENTS ARE BEING TRANSPORTED WITHOUT THE
FILING OF REQUIRED REPORTS- WHILE THIS AUTHORITY IS AVAILABLE FOR
INBOUND BORDER SEARCHES AND FOR OUTBOUND BORDER SEARCHES INVOLVING
MERCHANDISE, MOST COURTS HAVE NOT EXTENDED IT TO COVER OUTBOUND
SEARCHES INCIDENT TO SUSPECTED CURRENCY VIOLATIONS-
82
There are several other important amendments proposed in
Title Xll. One of them would authorize the payment of awards for
persons who provide information that leads to a fine, civil penalty,
or forfeiture under the currency reporting laws. The amount is
LIMITED TO one-fourth OF ANY RECOVERY AND MAY NOT EXCEED *150,000.
While this may seem to pe a high maximum amount, it must be viewed
in light of the huge amounts of currency typically involved-
Furthermore, it must be remembered that informants on money
laundering operations take a great personal risk in providing
information, AND THAT THIS TYPE OF INFORMATION IS ESSENTIAL IF WE
ARE TO MAKE FURTHER INROADS ON THESE ILLICIT ACTIVITIES, ANOTHER
CHANGE WOULD ADD CURRENCY VIOLATIONS TO THE LIST OF RACKETEERING
ACTIVITIES UNDER THE PaCKETEER-InFLUENCED AND CORRUPT ORGANIZATIONS
Act, OR RICO, The result would allow these offenses to serve as
THE predicate FOR A PICO PROSECUTION, ThE FINAL CHANGE WOULD ADD
CURRENCY OFFENSES TO THE LIST OF CRIMES FOR WHICH A COURT ORDER
AUTHORIZING ELECTRONIC SURVEILLANCE MAY BE OBTAINED. ThIS AMENDMENT
RECOGNIZES THAT CURRENCY LAWS ARE FREQUENTLY VIOLATED BY PERSONS
INVOLVED IN MAJOR CRIMES, BUT ALSO THAT THE SUBSTANTIVE NATURE OF
THE UNDERLYING CRIMINAL ACTIVITY IS FREQUENTLY UNKNOWN WHEN THE
INVESTIGATION COMMENCES.
f^R, Chairman, each of these amendments to the laws governing
CURRENCY AND FOREIGN TRANSACTIONS WILL IMPROVE THE TOOLS OF OUR
enforcement EFFORT AGAINST DRUG TRAFFICKING AND ORGANIZED CRIME AND
complement the increased resources we are devoting to this effort,
Liability under the Federal Tort Claims Act
Hr. Chairman, on another issue, one that is critical to
all Federal law enforcement, the Treasury Department strongly
SUPPORTS the amendments THAT TiTLE XIII OF THIS BILL WOULD MAKE
IN THE Federal Tort Claims Act, I'nder present law as articulated
IN THE BiVENS case, A FEDERAL LAW ENFORCEMENT OFFICIAL CAN BE HELD
personally LIABLE FOR CONDUCT OCCURRING WITHIN THE SCOPE OF HIS
office or employment that later turns out to be a constitutional
violation, even though the official believed his conduct to be
permissible,
Basically, these amendments would substitute the United States
83
Government as the defendant in a lawsuit against a law enforcement
agent or officer for a constitutional tort alleged to have been
committed by the AGENT OR OFFICER ACTING WITHIN THE SCOPE OF HIS
OFFICE OR EMPLOYMENT-
The THREAT OF PERSONAL LIABILITY TODAY HANGS LIKE A DAMOCLES
SWORD OVER THE HEADS OF LAW ENFORCEMENT OFFICIALS AND HAS INHIBITED
THEM FROM TAKING AN AGGRESSIVE APPROACH IN ENFORCING THE LAW- ThE
FACT THAT THESE SUITS OFTEN TURN OUT TO LACK MERIT DOES NOT AFFECT
THE NEED FOR THIS LEGISLATION; AS MUCH AS THE THREAT OF LIABILITY,
IT IS THE THREAT OF THE LAWSUIT ITSELF. WITH ALL OF ITS ATTENDANT
TIME, EXPENSE AND UNCERTAINTY, THAT INHIBITS PROPER ENFORCEMENT
CONDUCT •
Title XIII would make the United States liable for all con-
stitutional TORTS committed BY ITS EMPLOYEES- SUCCESSFUL LITIGANTS
would be compensated with minimum liquidated damages of $1,000 or,
in the case of continuing torts, $100 per day, up to $15,000-
Litigants would also rf entitled to any actual damages that they
COULD establish. In THE LITIGATION, THE UNITED STATES WOULD HAVE
available to it all of the defenses that would have been available
to the employee- thus, the liability of the united states would
not be a strict liability such as would, for example, make the
United States liable in every case in which evidence is suppressed
on constitutional grounds- rather, the government would be liable
only if the conduct in question were unreasonable under the
circumstances, including applicable constitutional mandates -
Even with governmental liability for these torts, deterrence
against the commission of constitutional torts of the type subject
today to pivens suits would remain- not only would there be the
exposure of the public proceedings, but disciplinary action would
also be triggered under the provisions of this bill-
IN ALL, THE MECHANISM THAT TiTLF XIII WOULD PUT INTO PLACE
WOULD UPHOLD THE RIGHTS OF LITIGANTS AND DETER UNCONSTITUTIONAL
CONDUCT- At the SAME TIME, IT WOULD ENSURE THAT LAW ENFORCEMENT
OFFICERS ARE NOT UNFAIRLY AND UNDULY INHIBITED IN PERFORMING THEIR
OFFICIAL DUTIES-
84
Enforcement Against Forged Fndopsements
OF Federal Securities
Another problem of concern to Treasury that this bill would
REMEDY involves ENFORCEMENT AGAINST FORGED ENDORSEMENTS OF TREASURY
checks, bonds, and other Federal securities- Title XIV would
INTRODUCE into THE CRIMINAL CODE A NEW SECTION MAKING IT A FELONY
TO FORGE AN ENDORSEMENT OR SIGNATURE ON ANY UNITED STATES SECURITY
OR SECURITIES HAVING A VALUE IN EXCESS OF $500- It WOULD ALSO
PROHIBIT THE PASSING OF, AND THE ATTEMPTING TO PASS, SUCH SECURI-
TIES WITH THE INTENT TO DEFRAUD, AS WELL AS THE RECEIPT OF SUCH
SECURITIES WITH KNOWLEDGE OF THEIR FALSE CHARACTER- OFFENSES
INVOLVING SECURITIES OF *500 OR LESS IN VALUE WOULD BE TREATED AS
MISDEMEANORS UNDER THE NEW SECTION-
To SUMMARIZE BRIEFLY, THE PROBLEM UNDER PRESENT LAW IS THAT
these crimes must be prosecuted under section 4^5 of the code , a
general provision that does not specifically cover government
securities and does not apply to endorsements- there are gaps in
the coverage of this section; for example, it is possible for a
thief to steal a treasury check endorsed by a payee, endorse his
own name, and obtain the proceeds, without violating section i^f-
This new legislation, by allowing for prosecution of forged
endorsements and signatures under one section, would correct
these deficiencies AND GREATLY ASSIST THE SECRET SERVICE, WHICH
under present law has the responsibility for enforcement against
these offenses -
Enforcement Against Rank Bribery,
Bank Fraud, and Receipt of Stolen Rank Property
Finally, this bill would remedy certain deficiencies in the
criminal code that pertain to crimes involving banks- Treasury
HAS particular INTEREST IN CORRECTING THESE DEFICIENCIES BECAUSE
OF ITS RESPONSIBILITIES FOR THE REGULATION OF BANKING, EXERCISED
BY THE Comptroller of the Currency- One problem is that it is
OFTEN DIFFICULT TO PROSECUTE BANK FRAUD BECAUSE CURRENT STATUTORY
provisions DO NOT DIRECTLY APPLY TO THIS OFFENSE- IN MOST CASES,
THE Government must resort to the prohibitions against embezzlement
AND misapplication OF FUNDS, OR THOSE APPLYING TO FALSE STATEMENTS
AND FALSE LOAN APPLICATIONS-
85
A RECURRING SITUATION THAT HAS POSED PROBLEMS IS THE LOANING
OF MONEY BY BANK OFFICIALS TO A THIRD PARTY, WITH THE INTENT THAT
THE PROCEEDS OF THE LOAN WILL BE TURNED OVER TO THE BANKING
OFFICIAL FOR HIS OWN USE- SOME COURTS HAVE HELD THAT HIS CONDUCT
DOES NOT CONSTITUTE MISAPPLICATION UNLESS THE DEBTOR WAS FICTITIOUS,
FINANCIALLY IRRESPONSIBLE, OR WAS ASSURED BY THE BANK OFFICIAL THAT
HE WOULD NOT BE LOOKED TO FOR REPAYMENT- WiTH RESPECT TO USE OF
THE FALSE STATEMENT STATUTES, COURTS HAVE OCCASIONALLY HFLD THAT
OFFICERS MAKING SUCH LOANS FOR THEIR OWN BENEFIT AND CONCEALING
THEIR EXISTENCE FROM BANK DIRECTORS, DOES NOT CONSTITUTE A FALSE
STATEMENT ON THE BOOKS AND RECORDS OF THE BANK-
In addition TO DEFINING A SPECIFIC OFFENSE FOR DEFRAUDING ANY
FINANCIAL INSTITUTION THAT IS FEDERALLY CHARTERED OR INSURED, THIS
BILL ALSO UPDATES AND REVISES THE CODE PROVISIONS ON BANK BRIBERY-
ThE present statute is UNDULY COMPLEX AND FAILS TO COVER CERTAIN
FINANCIAL INSTITUTIONS, SUCH AS FEDERALLY- INSURED CREDIT UNIONS
AND MEMBER BANKS OF THE FEDERAL HOME LOAN RANK SYSTEM- ThE NEW
PROVISION WOULD PROHIBIT ANY BANK OFFICER, EMPLOYEE, OR AGENT
FROM RECEIVING ANYTHING OF VALUE FROM ANY PERSON, OTHER THAN HIS
FINANCIAL INSTITUTION, IN CONNECTION WITH ANY TRANSACTION OF THAT
INSTITUTION. The PENALTY IS INCREASED FROM ONF YEAR TO FIVE YEARS'
IMPRISONMENT, AND THE MAXIMUM FINE IS INCREASED FROM $F,00n TO
THREE TIMES THE AMOUNT OF THE BRIBE-
WlTH REGARD TO RECEIPT OF STOLEN BANK PROPERTY, THIS BILL
CORRECTS A PROBLEM THAT HAS MADE PROSECUTIONS OF THIS TYPE
UNNECESSARILY DIFFICULT- UNDER THE NEW PROVISION, THE ROVERNMENT
MUST PROVE THAT THE DEFENDANT KNEW THE PROPERTY RECEIVED WAS STOLEN,
BUT NEED NOT SHOW KNOWLEDGE THAT THE PROPERTY WAS STOLEN FROM A
BANK-
In general, these sections of the bill provide a STATUTORY
basis to strengthen the prosecution of illegal activities involving
Federally-supervised financial institutions- We believe these
reforms are necessary to ensure the continued integrity of thf
Federal banking system-
Mr. Chairman, again, I appreciate the opportunity to appear
before you and members of this Committee to express Treasury's
strong support for passage of the Comprehensive Crime Control Act
of 1983- It is a legislative package that will strengthen Treasury
law enforcement as it provides long-nefded remedies for federal
law enforcement in general-
86
Senator Biden. I do not want to keep you fellows too far beyond
your lunch. I have many questions, but I will not take advantage of
the fact that I am presiding. I will ask for unanimous consent, and
then grant it, so that the series of questions, about 20 or so that I
have on the Torts Claims Act, forfeiture and other provisions, may
be submitted for the record. I would then ask that you respond.
[The following was received for the record:]
87
Responses to Senator Biden's Questions regarding Tort Claijms Amendments;
Question No. 1. "Tort Claims actions act against federal
employees for violations of constitutional rights have clearly
served as a deterrent to such activities. However, neither
federal employees or victims are served by the present system.
If financial liability is removed, how will individual federal
employees be deterred from such activities?"
Answer. The record developed during consideration of
this legislation demonstrates that incidents of willful rights
violations are extremely rare. Therefore it has been generally
accepted that the deterrence being experienced is primarily
deterrence of proper and needed governmental action. Section
1305(c) of the bill provides that the Attorney General shall
forward correspondence to the head of an employee's department
or agency for investigation or disciplinary action when the
actions of the employee result in a judgment against the
United States or- a settlement paid by the United States.
Through this measure serious agency disciplinary action may
be initiated against a transgressing federal employee. This
sanction should not be minimized. It can result in penalties
ranging from reprimand to demotion to permanent loss of
one's chosen livelihood. The multitude of other sanctions
available are as follows: The proposal contains no immunity
from prosecution for a violation of federal criminal laws,
particularly those concerning civil rights. In addition
to formal agency disciplinary action, performance appraisals
and scrutiny by agency Inspectors General serve as deterrents.
Congressional oversight and the public media also act as
restraints. Court challenges seeking injunctive relief are
an additional check.. Finally, the fact that an employee is
relieved of personal financial liability does not mean that
his conduct is not brought into serious question by trial
proceedings brought in a case against the United States as a
result of his alleged wrongdoing. He will still be the
88
subject of a lawsuit and, particularly if qualified immunity
remains an issue, his conduct will be the subject of serious
public and governmental scrutiny in the objective forum of
a federal district court. While some observers have ignored
or discounted this factor, an employee's interest in his
professional reputation and personal pride is a major motivat-
ing factor with respect to official conduct. Thus, sanctions
remaining and supplemented by chapter XIII of S. 829 amply
deter official misconduct in the place of what is now a
futile damages remedy.
Question No. 2. "The House bill proposed a jury trial
against the government with additional damages of up to
$100,000 'if the conduct giving rise to the tort claim was
undertaken with the malicious intention to cause a deprivation
o£ constitutional rights or with reckless disregard for the
plaintiff's constitutional rights.' Doesn't this meet the
goals of the legislation by compensating victims and encourage
the government to supervise employees and discipline employees
who violate constitutional rights?"
Answer. It should first be noted that the phrase "reckless
disregard" has been stricken from the House bill by amendment.
Legislation of this nature seeks to achieve a balance between
the compensatory interests of claimants and public resources.
Moreover, the object of tort law is to attempt to compensate
victims for losses they have suffered. With those concepts
in mind, an additional award such as that contained in the
House bill, which bears no relationship to compensation for
injury, seems illogical and unfair to the citizenry as a
whole. The possibility of an unfair windfall for the plaintiff
exists that has no reasonable relationship to any damage
suffered. Such a provision will encourage many plaintiffs
who have suffered virtually no injury to take the chance in
lottery fashion on winning the bonus award by alleging malice.
89
Thus, it is submitted that such a provision is neither appropri-
ate nor in the public interest.
Question No. 3. "In the past, enactment of Tort Claims
Act Amendments has been prevented by opposition to the proposal
that the government be allowed to invoke the 'good faith' defense
available to its employees when sued as individuals.
"What purpose will be served by the government
invoking the defense dther than reducing compensa-
tion to victims whose rights have been violated?
Won't the immunity reduce the level of super-
vision of employees?
Isn't it likely that extending the immunity to
the government will complice litigation, contrary to
the purpose of the admendment by requiring employees
to prove their good faith?"
Answer. It is extremely important to understand at the
outset that the issue of qualified immunity no longer is one
of good faith. On June 24, 1982, the Supreme Court in the
case of Harlow v. Butterfield, U.S. ; 50 U.S.L.W. 4815
eliminated good faith from the test of qualified immunity.
What remains is an inquiry into whether the conduct of the
employee was objectively reasonable. Thus, the issue in the
debate over the qualified immunity defense is whether the
government should be entitled to show that what its employee
did was reasonable under all of the circumstances. This of
course, is the same concept through which any employer is
entitled to defend the actions of an employee under the
doctrine of respondeat superior. Were the defense to be
waived, the government would face strict liability in an
era of frequently vague and constantly shifting law, "whara
monumental decisions applied retroactively could subject the
government to massive liability to tens of thousands of
persons for actions thought to be perfectly appropriate when
taken, and where complex legal doctrines can be tranalat«4
25-694 0-84-7
90
into day-to-day operating instructions only with the greatest
dif f iculty--an absolute liability standard requiring omniscient
decisionmaking would prove unworkable." See, statement of
Loren A. Smith before the Subcommittee on Administrative
Practice, May 26, 1983.
The often glib response to this argument is that there
should always be compensation when a right is violated. The
problem is that both the law and facts of a given circumstance
are often terribly unclear and whether some right has been
violated cannot be determined until a particular issue sifts
its way through the courts years after the fact. To quote
from recent testimony presented in the Senate, "The biggest
misstatement that I've heard here today is that a public
official who is reasonably well-versed on his job knows what
the law is. There is no way anybody can know what the law is
until you finally count it up in the court of last resort —
where it is a split decision, typically." Id. Judge Jerre
Williams, Fifth Circuit, United States Court of Appeals.
To put it another way, were the defense waived, the
United States would pay damages in cases where courts determined
with 20-20 hindsight that violations had occurred in a difficult
factual or procedural setting even though the conduct or the
process at the time was properly motivated and eminently
reasonable .
In addition, it is waiver of the defense rather than
preservation of it that. will reduce the level of proper
supervision of employees. Agencies and agents would hesitate
to act for fear of damages claims which would reflect adversely
upon them because they would be prevented from defending
their conduct as reasonable in court. A witness before the
Senate testified that the interest of deterrence of official
misconduct requires preservation of the qualified immunity
defense. This is so because, in a strict liability situation,
the actions of the reasonable employee will be found just as
91
culpable as the actions of the employee who acted unreasonably.
Thus, there will be no standard toward which an employee can
strive to avoid a successful attack on his or her reputation
as a public servant.
Finally, elimination of the defense would seriously
detract from the ability of the courts to fully consider
allegations of official misconduct. It is very much in the
public interest to have a full ventilation in an objective
public forum of such allegations. If the issue of the reason-
ableness of the conduct of the federal employee is declared
irrelevant by eliminating the defense, all pertinent facts
which impact on this basic tort concept of reasonableness
may be declared irrelevajit. The effect would be that the
public and the Congress would never learn the true merits of
the case and that the people of the United States would be
subjected to judgment without a full hearing. While pre-
servation of the defense may be viewed as a complicating
factor in litigation, that consideration is outweighed by
the interest of ventilating the merits of the contoversies
that will surface. Moreover, it is clearly not in the interest
of the United States to streamline cases to the point where the
United States cannot defend itself and is reduced to the
position of simply paying claims. Finally, it must not be
overlooked that passage of the current proposal intact will
enable the United States to settle cases for the first time
which are premised upon a theory of constitutional rights.
As a result, a case turning on the issue of qualified immunity
can be settled when there is litigative risk to both sides.
Thus, the difficult cases will be disposed of much more quickly.
92
RESPONSES TO SENTENCING QUESTIONS OF SENATOR BIDEN
Question 1
Both the bipartisan Crime bill, as it passed the Senate on
September 30, 1982, and S. 829, the Administration's bill,
provide for the creation of a Sentencing Commission as an
independent body in the judicial Branch. Both bills provide that
the President, after consultation with representatives consisting
of judges, prosecuting and defense attorneys, law enforcement
officials, senior citizens, victims of crime, and others
interested in the criminal justice system, appoint this
seven-member commission. Do you believe that judges should have
representation on this commission? Should any sentencing bill
specify that a certain number of judges should be chosen to sit
on the Sentencing Commission?
Answer to Question 1
It is important that judges with federal sentencing
experience participate in the development of the sentencing
guidelines. This participation should include both membership of
current or past federal judges on the commission and active
participation by members of the federal judiciary, acting alone
or through the Judicial Conference, in the development of the
guidslines. Participation of judges is especially important in
•■■arln9 that the sentencing guidelines provide enough detail to
tak* into account commonly occurring factors that should affect
the sentencing decision, while they avoid such complexity that
judges will have difficulty in applying them. In addition, a
number of past and current federal judges have been very active
in the sentencing reform movement, and their participation in the
guidelines development process should be encouraged. Finally, it
is important that the Federal judiciary feel a commitment to
making the guidelines process work well. This goal can, we
believe, be far more readily achieved with membership of Federal
Oommission than without it. Whether ths
93
legislation should specify that federal judges should be on th«
Commission, and, if so, whether the legislation should state a
specific number of federal judges, are questions on which the
Department of Justice defers to the judgment of the Committee on
the Judiciary.
Question 2
Instead of establishing a Sentencing Commission to develop
guidelines for sentencing, would it be preferable to authorize
the Judicial Conference of the United States to perform this
task?
Answer to Question 2
The Department of Justice strongly recommends that the
sentencing guidelines be promulgated by a Sentencing Ccamission
in the Judicial Branch, rather than by the Judicial Conference of
the United States, for a number of reasons. First, a Sentencing
Commission, with members appointed by the President with advice
and consent of the Senate, will be far more visible than a
committee of the Judicial Conference might be. This visibility
is important to assure public awareness and understanding of the
sentencing guidelines process. Second, promulgation of the
sentencing guidelines by the Judicial Conference would probably
be more time-consuming than promulgation of the guidelines by a
Sentencing Commission. The Judicial Conference meets only twice
a year, so that if it had any difficulties with guidelines
suggested by its committee, there would be substantial delay in
resolving them. In addition, the fact that the sentencing
guidelines would be suggested by a committee of the Judicial
Conference and then promulgated by the Judicial Conference would,
in and of itself, add an additional layer to the sentencing
guidelines development process. This is not to say that, as
noted in the response to question 1 , it is not important that the
Judicial Conference play a very active role in the guidelines
proanilgation process. Third, the Judicial ConferwMl
94
anticipates that the members of the guidelines drafting agency
would be part-time, while the Sentencing Commission proposal
recommends that the members be full-time. The Department thinks
that, at least during the drafting of the initial set of
guidelines and the first few years of experience under the new
guidelines system, it is very important that the drafting agency
have members who are able to devote all their professional
energies to issues of federal sentencing policy. Fourth, the
Sentencing Commission legislation contemplates a special staff
assigned to the Sentencing Commission while the Judicial
Conference proposal appears to contemplate that the staff for the
guidelines effort be drawn from the staffs of the Administrative
Office of the United States and the Federal Judicial Center. Any
guidelines drafting agency would be expected, of course, to draw
upon the expertise and background of these staffs, particularly
in the data collection, research, and training areas. We do
think, however, that there should be provision for a staff that
can work full-time on sentencing matters without the necessity of
juggling other responsibilities.
Question 3
Parole has been referred to as a "safety valve" of the
criminal justice system, yet it would be eliminated in the
sentencing title of the Administration bill. The bipartisan bill
of last Congress authorized a defendant or the Bureau of Prisons
to motion for reduction of a long sentence after six years and at
the end of the guideline years. Do you agree this safety net is
necessary if parole is abolished? What would replace such a
"safety valve" if parole were abolished?
95
Answer to Question 3
It is not necessary to retain the "safety valve" described
in the question if parole is abolished. Under current law,
parole serves as a rudimentary, one-way safety valve in a system
that provides no standards whatsoever for sentencing judges in
determining the appropriate sentences. Parole serves the
necessary function of evening out widely disparate sentences that
vary according to factors other than offense and offender
characteristics that should affect the sentence. This function
of the Parole Coiranission is totally unnecessary in the sentencing
guidelines system. If there is a long sentence under the
proposed system, it would result from the fact that the offense
and offender characteristics in the particular case warranted a
high sentence and not because a high sentence had been imposed
that is not justified by the facts of the case — and such a
sentence above the guidelines range would be subject to appellate
review in any event.
The bill provides several protections against unjustifiably
long sentences. First, a defendant who is sentenced above the
guidelines range that applies to his case may appeal th^t
sentence on the ground that it is unreasonable. Second, while S.
829 does not contain a provision for extra review of sentences
that exceed six years, it does provide for modification of a
prison term in two specific instances. The court may reduce any
term of imprisonment — not just an unusually long one — if,
upon motion of the Director of the Bureau of Prisons, it finds
that there are extraordinary and compelling reasons to do so.
This provision was included to cover situations, such as terminal
illness of a prisoner, that may justify the reduction of a
sentence because of a change in the circumstances that originally
justified imposition of a particular sentence. In addition, if
the Sentencing Commission amends the sentencing guidelines
applicable to a particular offense and in the course of doing so
lowers the terms of imprisonment that apply for the offense, it
may recommend that prisoners already sentenced under the old
96
guidelines be given the benefit of the sentence reduction. Thus,
for example, if there were a substantial change in the community
view of the seriousness of an offense, such that the Sentencing
Commission found that a substantial reduction was appropriate, it
could also recommend making that reduction applicable even to
persons already incarcerated.
Because the bill already provides one level of appeal of a
sentence, and the two instances described in which sentences may
be reduced, it is difficult to see what other circumstances might
necessitate the inclusion of a "safety valve". The original
sentence would have been imposed for the purpose of incapacita-
tion, deterrence, or punishment, or a combination of these,
purposes — purposes of sentencing that logically require a
determinate sentence. Since the bill makes ample provision for
changing the term of imprisonment for humanitarian reasons, it is
not apparent that such a "safety valve" would be of any real
value. It would, moreover, detract from the certainty and
determinacy that the new system is designed to achieve.
Question 4
Some have argued that the Parole Commission should be
retained along with a Sentencing Commission. V7hat are your views
regarding retention of the Parole Commission? What is your
opinion of the proposal to sunset the Parole Commission 5 years
after the bill?
Answer to Question 4
The Department of Justice strongly opposes the retention of
the Parole Commission except temporarily for purposes of setting
release dates for persons sentenced before the guidelines system
is in place. This opposition extends not only to the suggestions
that the Parole Commission be retained, at least temporarily, to
carry on purposes similar to those under current law, but also to
the suggestion of the Judicial Conference that the Parol*
97
Conunission be retained to set prison release conditions and
determine what sanctions should be applied to a releasee who
violates them.
The Justice Department is especially opposed to the
suggestion that the Parole Commission be retained, whether
temporarily or not, for purposes of evaluating whether terms of
imprisonment imposed under a sentencing guidelines system are
appropriate. The sentencing guidelines will have been issued
after public comment and hearings, and after careful
congressional scrutiny. Once the guidelines are in place, a
sentencing judge will have to impose sentence in accordance with
the guidelines unless he finds that a factor not adequately
considered in the promulgation of the guidelines should affect
the sentence. If he finds such a factor, he must state specific
reasons for imposing sentence outside the guidelines, and that
sentence will be subject to appellate review on the grounds that
it was unreasonable. Under such a system, it is difficult to see
what purpose would be served by retaining the Parole Commission
to review terms of imprisonment. We see no justification for
review of a sentence by an executive branch agency, acting
outside public scrutiny, second-guessing the guidelines issued by
the Judicial Branch after congressional scrutiny or a sentence
outside the guidelines that was already subject to appellate
review. We believe that retention of the Parole Commission in
such a system could be extremely detrimental to the success of
the guidelines system. The Sentencing Commission would not know
whether to attempt to set terms of imprisonment according to the
length of time it found a prisoner should actually serve or
whether it should recommend terms of imprisonment that assumed
that most prisoners would be released on their parole eligibility
dates. In addition, there is a substantial danger that the
Sentencing Commission would create one set of guidelines
following its views of the purposes of sentencing while the
98
Parole Conunission developed a different set of guidelines based
on different views. Once the guidelines were in place, much of
the current confusion as to the role of the judiciary versus the
role of the Parole Conunission in setting terms of imprisonment
would continue under such an approach. Moreover, there would be
some danger that sentencing judges would be reluctant to change
their sentencing practices in order to impose terms of
imprisonment that reflected the actual terms to be served rather
than artificially inflating the sentences, as occurs today, in
order to anticipate the actions of the Parole Commission. Thus,
keeping the sentencing guidelines and the parole system side by
side could result in substantially undermining the ability of the
sentencing guidelines system to accomplish its purposes.
The Department of Justice also opposes the suggestion of the
Judicial Conference that the Parole Commission determine whether
a prisoner has earned good time credit in prison, setting the
conditions of parole release, and determining the sanctions for
violations of release conditions. The Bureau of Prisons today
determines whether prisoners have earned good time. We see no
reason to change this, especially since the Parole Commission is
a multi-million dollar agency that is far more cumbersome than is
necessary to serve that purpose. Under S. 668 and S. 829, in
addition, the sentencing judge determines the term of supervised
release that will follow a term of imprisonment, if any, and sets
tlM conditions on that release. The factors that go into the
determination that a term of supervised release will be needed,
and what conditions should be imposed on that term, are known at
the time of sentencing. There is no reason to retain a special
agency to set the conditions of release, nor should the length of
that term depend upon how much good time the defendant happens to
earn. If the term of supervised release is entirely dependent on
the amount of good time a prisoner earns, the result would often
be that the person with the worst behavior in prison would
receive the least street supervision after his release and the
person with the best behavior would receive u substantial period
•f ■Iwt aopacvision even though he probably would MOt ummA it.
99
S. 668 and S. 829 contemplate, instead, that the term and
conditions of supervised release following a term of imprisonment
will be based on the offense and offender characteristics known •
at the time of sentencing and that no special agency will be
required to set good time or the conditions of release. If a
releasee violates the conditions of supervised release, the
conditions of that release can be modified to provide a higher
level of supervision, including, if appropriate, a requirement
-that the defendant undergo available medical, psychiatric, or
psychological treatment, including treatment for drug or alcohol
dependency, and, if necessary, remain in a specified institution.
Another possible condition of supervised release that might be
added if a defendant's violations warrant it would be a
requirement that the defendant reside at a community correctional
facility for all or part of the remaining term. In a serious
case, the contempt powers of the court could be used to achieve
further incarceration of the defendant. Of course, if the
release violation is the commission of a new offense, the fact
that the defendant was on release at the time the offense was
charged would be taken into account into the setting of bail
conditions, and the defendant could be prosecuted for the new
offense. Incidentally, the Department would not object to an
amendment specifically recognizing that the courts may use their
contempt powers in the case of a violation of an order setting
forth the conditions of the term of supervised release.
Question 5
Would the movement toward determinate sentencing be likely
to increase the already burgeoning prison population?
Answer to Question 5
The creation of a determinate sentencing system in place of
an indeterminate one will not, in itself, cause an increase in
the prison population. A determinate sentencing system simply
results in the imposition of terms of imprisonment that r«fl«et
100
the actual time to be served rather than being artificially
inflated in order to take into account the functioning of the
parole system. Only if sentencing guidelines promulgated under a
determinate sentencing system included higher terms of
Impalsonment than are served today or if there was an increase in
the number of persons prosecuted for offenses for which prison
terms are recommended, would there be an increase in the prison
population. Sentencing guidelines could as well recommend lower
terms of imprisonment for some offenses than are served today.
One of the advantages of a sentencing guidelines system with
determinate sentencing is that it is possible for the criminal
justice system to determine precisely what impact, if any, a
change in current sentencing practices or in the mix of cases
prosecuted will have on the prison population and on other
aspects of the criminal justice system. . Under today's system,
even if we know how many people will be prosecuted for a
particular offense, we have no way of knowing with any reasonable
degree of certainty what impact sentencing a particular
percentage of those persons to prison will have on the prison
population since we do not know how long those prisoners will
actually serve.
Question 6
Some critics contend that permitting appellate review of
sentences by the Government in cases in which a sentence is more
lenient than that established by the Guidelines would constitute
double jeopardy. Could you respond to this allegation?
Answer to Question 6
Government appeal of sentences, on behalf of the public, is
clearly constitutional. The Supreme Court in United States v.
DiFrancesco, 449 U.S. 117 (1980) upheld the constitutionality of
a provision in current law that permits a sentence imposed under
the dangerous special offender provisions to be increased upon
appeal by the United States. In doing so, the Court said:
101
The double jeopardy considerations that
bar reprosecution after an acquittal do not
prohibit review of a sentence. We have
noted... the basic design of the double
jeopardy provision, that is, as a bar against
repeated attempts to convict with consequent
subjection of the defendant to embarrassment,
expense, anxiety, and insecurity, and the
possibility that he may be found guilty even
though innocent. These considerations,
however, have no significant application to
the prosecution's statutorily granted right
to review a sentence. This limited appeal
does not involve a retrial or approximate the
ordeal of a trial on the basic issue of guilt
or innocence. Under S 3576, the appeal is to
be taken promptly and is essentially on the
record of the sentencing court. The
defendant, of course, is charged with
knowledge of the statute and its appeal
provisions, and has no expectation of
finality in his sentence until the appeal is
concluded or the time to appeal has expired.
To be sure, the appeal may prolong the period
of any anxiety that may exist, but it does so
only for the finite period provided by the
statute. The appeal is no more of an ordeal
than any government appeal under 18 U.S.C. §
3731 from the dismissal of an indictment or
information. The defendant's primary concern
and anxiety obviously relate to the determi-
nation of innocence or guilt, and that
already is behind him. The defendant is
subject to no risk of being harrassed and
then convicted, although innocent. Further-
more, a sentence is characteristically
determined in large part on the basis of
information, such as the presentence report,
developed outside the courtroom. It is
purely a judicial determination, and much
that goes into it is the result of inquiry
that is non-adversary in nature.
The appeal provisions in S. 668 and S. 829 are similar to
the appeal provision discussed by the Supreme Court in this long
quotation. Under both statutes, it is clear that the defendant
has no expectation of finality in the sentence, since in both
instances the appeal rights of the government are set forth
plainly in the statute. The appeal in both instances is limited,
and, in fact, under S. 668 and S. 829, since the only sentence
that would be appealable would be one outside sentencing
guidelines or one that involved an incorrect application of the
guidelines, the appeal is even more limited than it is under the
dangerous special offender provisions. In neither case does the
limited appeal involve a re-trial or approximate the ordeal of a
trial on the basic issue of guilt or innocence, and the appeal
would be essentially on the record of the sentencing court.
102
Those who question whether there is a double jeopardy
problem with the appellate review of sentence at the instigation
of the government base their argument on the Supreme Court
decision in Bullington v. Missouri, 451 U.S. 430 (1981) , a case
that involves the sentencing proceeding under a death penalty
statute in Missouri. In that case, the jury, in a proceeding
separate from the trial of the defendant, found that the
prosecution did not prove beyond a reasonable doubt, as required
by the statute, that there were aggravating factors in the case
that had to exist before the death penalty could be imposed. The
Supreme Court found that, because of the special bifurcated
procedure, the fact that the government was charged with proving
aggravating factors beyond a reasonable doubt, and the special
nature of a death sentence, that the jury had in effect acquitted
the defendant of the aggravating factors that were necessary for
imposition of a death sentence. The court was very careful to
distinguish the proceedings from the normal sentencing hearing
situation, and we are satisfied that the case does not cast any
doubt at all on the constitutionality of government appeal of
sentences in ordinary cases.
Question 7
S. 829 requires the Sentencing Commission to impose a
substantial term of imprisonment for so called "career
criminals," those who have two or more prior convictions for
felonies committed on different occasions. Will such a practice
exacerbate the problem of overcrowding in prisons and jails? Are
two convictions too few for this purpose? Would it alleviate the
problem if the number of convictions were revised to three?
Answer to Question 7
This provision, in itself, should not have an appreciable
impact on the problem of overcrowding in prisons and jails. In a
recent study conducted for the Department of Justice using almost
103
6,000 federal cases, the prior record of the defendant, using a
single period of incarceration of a year or more as the
criterion, was a strong predictor, for almost every felony
studied, of both the judge's decision to incarcerate an offender
and the length of the period of incarceration. It was not a
strong predictor that a judge would incarcerate a person
convicted of homicide because the offense is so serious that most
offenders are incarcerated whether they have a record or not,
although it was still a strong predictor of the length of a
prison term. For the offenses of bank robbery, drug trafficking,
forgery, bank embezzlement, false claims, mail fraud, and a
random selection of other offenses, the existence of a criminal
history was a strong predictor of a decision to incarcerate, and
for those offenses plus homicide and tax fraud, it was a strong
predictor of the length of the term of imprisonment. See INSLAW,
Inc., and Yankelovich, Skelly, and White, Inc., Federal
Sentencing; Toward a More Explicit Policy of Criminal Sanctions,
pp. 11-34 to 11-35 (1981) . Since the rate of incarceration of a
person convicted of a felony who has previously been incarcerated
for only one felony is already quite high, it does not appear
that the provision in the bill will have much impact on that
rate. Instead, the sentencing guidelines system should result in
a more rational pattern than exists today in determining the
amount of time that a defendant is to be imprisoned in light of
his criminal record.
104
Responses to Organized Crime and Task Force Questions
1. Direct funding in FY 84 for the Treasury Drug Task Force
agencies.
Funding requested for FY 1984 by the Administration for the Task
Force initiative provides for full-year funding for the program. In
FY 1984, the Administration is requesting funds in the OCDE appro-
priation totalling 1,130 staff and $105,949,000 to reimburse
components of the Department of Justice for participation in Drug
Task Force activities. Funds totalling 500 positions and
$32,867,000 to provide for Department of the Treasury participation
in the Drug Task Forces are requested as direct appropriations to
the agencies involved — the Internal Revenue Service, the U. S.
Customs Service, and the Bureau of Alcohol, Tobacco and .Firearms.
Further, the Task Force management structure for each of the 12
Task Force regions and the districts within each region is in place
and functioning. By September 1, 1983, the Task Forces will be
totally staffed by the prosecutors, agents and support personnel
proposed in the FY 83 budget.
With the management and operational structures in place, the
Attorney General will continue to have full responsibility for the
Organized Crime Drug Enforcement effort and determine the level of
participation required from the Department of the Treasury. The
Drug Task Force effort to date has been marked by the utmost degree
of cooperation among the participating agencies. Because of this
shared commitment to the success of the program, the participation
levels established by the Attorney General for Treasury enforcement
operations could be funded from the Treasury appropriation (once the
Task Forces have been established).
2. How many cabinet councils, legal policy committees, working
groups, etc., are you on that have been set up by this
Administration to "direct" the federal effort against drug abuse
and organized crime?
The purpose -of these councils, committees, groups, etc., is to
provide mechanisms for senior officials of the Administration to
improve the coordination and efficiency of federal law enforcement
efforts, with particular emphasis on drug-related crime. For
example, this has been accomplished through the establishment of the
Cabinet Council on Legal Policy, which is chaired by the Attorney
General and whose membership includes all Cabinet officers with
responsibility for narcotics law enforcement. Working through the
Cabinet Council, the White House Office on Drug Policy is an inte-
gral part of the process by which a comprehensive and coordinated
narcotics enforcement policy is carried out.
3. Which of these groups has the ultimate authority to direct
federal drug control efforts?
There is no single group or agency that has the ultimate
authority to direct federal drug control efforts. The drug
problem facing America today cannot be address by a single agency
or prograa ranging from education to prosecution. Therefore, this
Administration's drug control efforts covers a broad range of
Initiatives and involves a number of diverse agencies and
department, requiring coordination at the cabinet and senior
official levels.
4. To what extent are the Organized Crime and Drug Enforcement Task
Forces modeled after the South Florida Task Force, and how are the
two different?
The 12 Organized Crime Drug Enforcement Task Forces evolved from
tha South Florida experience. As in the South Florida effort, the
12 Crug Taak Forces are designed to have specifically dedicated
105
attorneys, agents and support staff available to invettigate and
prosecute maior drug traffickers and drug trafficking organizations.
The 12 Drug Task Forces are different in two principal ways: first,
the 12 Drug Task Forces add new resources to the federal drug
enforcement effort; and second, the primary enforcement techniques
will be long term, complex investigations rather than interdiction.
NNBIS is designed
agencies with existing
interdiction of sea-bo
narcotics. As a resul
duties of the regional
Department of Justice,
activity originating o
United States, and wil
and arrests of persons
to coordinate the work of those federal
responsibilities and capabilities for
rne, air-borne and cross-border importation of
t, NNBIS will complement but not replicate the
Drug Enforcement Task Forces operated by the
NNBIS will monitor suspected smuggling
utside national borders and destine for the
1 coordinate agencies' seizure of contraband
involved in illegal drug importation.
5. Is there an Organized Crime and Drug Enforcement-type Task Force
planned for Florida? Will additional funding be required?
The Department of Justice is seeking operatinq funds and
additional positions of a Florida Task Force in FY 1985. In the
interim, 9 attorneys have been allocated to Florida to support the
already increased enforcement and prosecution demands being
generated in the state. Further, the three Florida U. 8. Attorneys
are included in the planning and coordination efforts of the 12 Drug
Task Force.
6. How do these two types of Task Forces relate to the new National
Narcotics Border Interdiction System (NNBIS) Task Force that have
been recently announced?
The South Florida Task Force, on June 17, 1983, became one of
the six regional centers of the National Narcotics Border
Interdiction System. As stated, NNBIS is designed to coordinate the
work of those federal agencies with existing responsibilities and
capabilities for interdiction of sea-borne, air-borne and
cross-border importation of narcotics; and will complement but not
raplicat* th« duties of the regional Drug Enforceitent Task Forces
operated by the Department of Justice.
7. What are the numbers of staff from each agency?
Support
Professiona
1
Professional
Professional
Positions
Positions
As
Positions
Positions
Allocated
. 77
Allocated
Of:
6/17
Filled
Backfilled
FBI
334
326
228
DEA
63«
274
6/17
274
167
IRS
35**
185
6/3
84
86
Customs
58t
142
6/3
70
42
ATF
8
72tt
6/3
22
5
OSNS
0
12
6/3
12
12
Agency
Subtotals:
241
1,019
788
540
AUSAs
146
200
67
60
Totals:
T-
387
1,219
855
600
• DEA has allocated only 34 of its 63 support positions across the
country, leaving 29 remaining positions yets to distribute.
** L-^L.^^^^ ^^ support positions have been assigned to tha
**■" ry Financial Law Enforcement Center, WashlMtm. 0. C.
25-694 0-84-8
106
t Customs has distributed only 25 of its 58 support positions
across the country, and has assigned 33 of those 58 positions
to the Treasury Financial Law Enforcement Center in Washington.
tt ATF has distributed only 54 of its 72 aqent positions across the
country, and has retained a pool of 18 agents for use in any
district on a work-year basis as need arise.
8. Are all positions authorized in Fiscal Year 1983 actually to be
filled this fiscal year? If not, why not?
Yes, all positions will be filled and the 12 Drug Task Forces
fully operational by September 1.
9. What is the current or most up-to-date total of staff on-board
at each of the twelve Task Forces? How many of these are located in
the core-city, and how many secondary cities have Organized Crime
and Drug Enforcement Task Force staffing?
There are over 855 attorneys and agents on-board the 12 Drug
Task Forces (refer to the response to question 7), with the program
scheduled to be at full strength on September 1 . The assignment and
hiring of Task Froce personnel are now processing at a pace to meet
this deadline. Therefore, the attorney, agent and support personnel
allocations for the individual Task Forces are provided as a better
representation of the program staffing efforts.
10. The 1984 Budget includes separate apppropriations for Justice
and Treasury components of the Task Forces. How will the Attorney
General be able to control the allocation of resources under these
separate budget appropriations?
This issue was addressed in response to question one.
11. What is the status of hiring and training agents to replace
those assigned to the Task Forces?
As stated in response to question 7, 600 new agents and
attorneys have been hired. The training of all new agents should be
completed or underway by the end of FY 1983. The hiring and
training process used by the agencies for new agents is not, and
ought not be an instantaneous one. The agencies are choosing these
new agents with customary care since they recognize that these new
agents join as full-time permanent agents.
12. Has a baseline number of agents working on drug enforcement in
each participating agency been established, in order to show that
the Task Forces represent an increase over previous levels?
This issue is being address in the development of the Drug Task
Force information system.
13. How will Justice decide whether the Task Force program is an
effective use of drug enforcement resources?
The Department is in the process of developing a complete
information system and evaluation design specifically for the Drug
Task Force program. The information system and evaluation design is
intended to collect and analyze the usual measurements (arrests,
seizures, etc.) as well as attempt to assess the effectiveness of
the Task Force approach.
14. When would such an evaluation be conducted?
The Department of Justice will conduct an evaluation to fulfill
the reporting requirements of the Annual Report to the President and
Congress requested in the December 20, 1982, confer«nc« raport.
107
15. Are mechanisms in place to collect the data needed to conduct
this type of evaluation?
An information system is being developed specifically for the
Drug Task Force program for several reasons: first, case-
management; second, resources allocation; third, coordination and
control of statistical information; fourth, evaluation; and finally,
reporting. The information system should be designed by mid-summer
and field tested by early fall.
16. Has any evaluation of the results of the South Florida Task
Force been conducted? What is the reason for the discrepancies in
the figures ouoepri hv various officials (ife., for arrests,
seizures, etc.)? If no reliable data and evaluation exists for
South Florida, how can Justice support its statements relating to
the Task Forces?
There has been no formal evaluation conducted on the South
Florida Task Force operation. There has been much Congressional
oversight and currently GAO is conducting an on-site review.
There has been releasable data provided on the South Florida
effort. Most recently, the Vice President, when announcing the
NNBIS operation, stated:
"The records shows that in South Florida, we have made progress
not only in terms of combating crime and thwarting the efforts of
drug smugglers, but also in terms of improving the morale of the
people of the area. We have brought them hope for the future
especially as it relates to the quality of life in Miami and the
surrounding areas.
"In February 1981, a public opinion survey taken by Miami
business leaders asked this question: 'Are you seriously
considering moving out of the area because of the crime and drug
problems?' Thirty-nine percent of the respondees said they were.
The same poll was taken in February of this year and only nine
percent said they were considering leaving...
"While the war on narcotics continues in South Florida, there
is impressive evidence that we are making solid progress. Drug
arrests are up 27 percent. Marijuana seizures are up 23 percent.
Cocaine seizures are up 54 percent. In the past fifteen months we
have seized nearly three million pounds of marijuana and more than
17 thousands pounds of cocaine in and around the South Florida area.
The street value of those druqs is about $5 billion."
17. Are agency reporting systems coordinated to prevent duplication
of results claimed by each agency?
Yes, the Druq Task Force information system being developed
will prevent reporting duplications.
18. How many of the cases now being pursued by the Task Forces are
primarily of the financial-investigation type and how many are
primarily the more traditional informant- or how many are primarly
the more traditional informant- or undercover-type? Which agencies
initiated these cases?
As a result of the preliminary district-by-district assessment
of the drug trafficking and the initial case review process, 260
active cases were selected as having met Task Force case standards
and available Task Force resources were committed. These initial
Task Force cases, being predominately complex multi-agency
investigations of the organizers and financiers of high-level drug
108
trafficking enterprises, usually have more than one focus and
numbers presented below will total more than the approved 260 Task
Force cases.
Type of Activity Number of Cases
Importation 128
Manufacture 21
Distribution 188
Financial Underwriting 34
Money Laundering 79 -
Public Corruption 22
Ninety-nine percent of all Task Force cases involve more than
one investigative agency. The following chart provides an overview
of the number of cases worked by Treasury agencies, by Justice
agencies and by both Treasury and Justice agencies.
Department Cases
Treasury (IRS, 17
Customs, ATF)
Justice (FBI 53
and DEA)
Joint Treasury 190
and Justice
260
In addition, state and local law enforcement agencies are
actively participating in a majority of the cases.
19. How are targets for Task Force investigations being selected?
Are the targets the best available cases that have some opening for
investigation, or are they the highest known traffickers regardless
of how easy or difficult an investigation would be?
All the investigative and prosecutive resources assigned to
date are working on the 260 Task Force cases. These 260 cases have
been approved by the United States Attorneys for the judicial
districts involved, the Task Force Coordinators, and by officials of
the Department here in Washington to ensure that they meet the
strict standards established for Task Force cases. Responsibility
for future Task Force targeting and case selection will' rest with
the agents and attorneys in the fields. These professionals are
best prepared to deal with the nuances of a case and institute a
successful prosecution. In the future, all Task Force cases will be
approved in the field and not in Washington as was the case with the
initial 260 cases selected.
Future investigations and case selection will develop from the
best available opportunities as well as targeting major drug
traffickers and trafficking organizations, including the financiers
and money launders. Targeting and case selection will focus on
causing the roost long-term damage to major drug trafficking and
financial enterprises, not on easy arrests and convictions.
20. What criteria are being used to assure that the highest-level
trafficking organizations and individuals are being targeted?
The Guidelines for the Drug Enforcement Task Forces provide the
standards upon which the U. sT Attorneys, the Assistant U. S.
Attorney Task Force Coordinator, and the investigative agency Task
Force Coordinators will make the operational investigation and
prosecution selections.
Further, the program's organization ensures careful monitoring
of the Task Force effort, including case selection, by the
Department of Justice and the participating federal investigative
agencies. The program is directed by a Working Group, which is
chaired by the Associate Attorney General and managed through the
Associate's office.
109
Senator Biden. Let me ask a few questions.
Mr. Walker, do you think Customs should have continuing inves-
tigative authority like they had in the Florida task force, and they
do not have now? Customs builds a case, and they think they
should follow up. As I understand it now, they have to turn it over
to DEA, or some other agency, and they cannot followup.
Do you think you should maintain that authority?
Mr. Walker. Well, we start off with the fact that prior to the
Florida task force. Customs on a seizure would turn the case over
to DEA, and it was our concern that these cases were not being
fully followed up, not because DEA was not doing its job in the best
way it could, but simply because it did not fit in with DEA's prior-
ities.
Consequently, as the Florida task force was established, we also
established, through Justice-Treasury cooperation, a working joint
task group, consisting of DEA and Customs, and this group is still
in effect. The Florida task force has not been disbanded; it is con-
tinuing with full vitality, and this joint task group is still in effect,
following up on investigations of interdictions by Customs.
We are currently in the discussion stage with DEA to establish
other joint task groups, as the needs arise, to handle interdictions
around the country. So right now I do not feel that the situation
needs any legislative action. I think it can be handled between the
departments, in terms of their working it out between themselves.
Senator Biden. I can sympathize with the different departments.
You remind me of the Democratic Party — I apologize if I offend
you — the Democratic Party 2 weeks before the general election. We
all get together and say "Oh, we all love one another, we are all
doing well," I realize that is part of the political process so I do not
know even why I asked the question, to tell you the truth.
I am glad to hear all is well, all is unified, and things are moving
smoothly, and it is really clicking along, and I hope you continue to
have these consultative commissions and groups, and it all works
out. I just want you to know, a whisper in your ear — if you need
help: holler. You can do it quietly. You can send up a message, and
I can release an unauthorized report, and Mr. Giuliani can be ac-
cused of violating the law. [Laughter.]
Senator Biden. Now, I would like to pursue, if I may, the forfeit-
ure provisions. I think we are all pretty much in agreement, at
least on the Senate side, but changing the law is only half the
problem. Maybe it is only about a third of the solution. One of the
things we found with extensive hearings, and with great coopera-
tion, I might add, from Justice and the last two administrations, is
that part of the problem is exercising the authority once you have
it.
Mr. Walker, I would like to ask you whether or not you believe
that Treasury employees receive adequate training regarding en-
forcement of forfeiture laws?
Mr. Walker. Well, I think that they do right now. I think there
is adequate training, but the problem is that, as we see it, our
hands are tied because the administrative forfeiture provisions are
so low in terms of the threshold amounts that we are faced with
having to maintain custody of huge quantities of forfeited or seized
vehicles that have yet to be forfeited judicially. These include air-
110
planes, boats, and cars that are tying up the efforts of people who
would otherwise be out enforcing the law.
I think the training aspect of it is being handled, but that still is
a long way from solving the problem.
Senator Biden. I was going to ask you whether you see any co-
ordination problems in the joint jurisdictions of Treasury, Justice,
DEA, and others in enforcement of the forfeiture laws. I will not
ask you that, because obviously you do not see any.
But I would like to ask you, how does that coordination work
now?
Mr. Walker. In the forfeiture aspects?
Senator Biden. Forfeiture aspects. Obviously it has been going
smoothly.
Mr. Walker. Well, my experience is that with forfeiture, at
least, problems of coordination have not surfaced to my level. If
there are problems, they do not seem to be paramount, or major.
Most of the forfeitures, however, are conducted independently.
In other words, DEA will seize, or Customs will seize, and then
each one will conduct its own proceedings.
Senator Biden. Is that not part of the problem?
Mr. Walker. What part? I mean
Senator Biden. Well, it seems as though it results in double
counting and other coordination problems, in terms of who builds
the case. It is one thing to seize the Lear Jet, or the single engine
Piper Cub that landed with the cocaine, or whatever substance it
was smuggling in. It is another thing to use the forfeiture statutes
to trace the assets with which Justice is most concerned so that it
is able to go after the entire empire. That is what the drug rings
are in many cases, where the dollars have already been laundered
into legitimate businesses. Many times the handling of a forfeiture,
or the seizure of the plane, impacts upon the building of the case
and in following additional assets all the way through the chain of
that particular organization. What I worry about is that narcotics
law enforcement officers, like police officers are .understandably in-
terested in collars~in arrests. That is the measure by which we
judge their effectiveness. Prosecutors, as Mr. Giuliani knows better
than I, sometimes consider the notch on the gun in terms of convic-
tions; that is, the number of convictions, rather than the scope and
the depth of the effort. It works the same way with forfeiture pro-
ceedings.
It seems to me that we, at least in the past, have not built cases
well, and I think that creates a great deal of confusion. When DEA
and Justice are trying to build a major forfeiture case, are you all
called in, in the sense that you are told: Now such and such organi-
zation, which we understand is going to have a major drop over
here, is involved in a major effort we have going to build forfeiture
cases, and we would like you to do such and such.
Do you understand what I am trying to say?
Mr. Walker. Yes, I think there is complete coordination on that
score. You are talking about an ongoing investigation, where a for-
feiture case is being built, and DEA uncovers information that
there is going to be some sort of an importation.
Ill
In those cases, Customs is notified, participates, and contributes
to the coordination of ^e case, and very often, there is virtually no
problem in that kind of a case.
With coordination between the Bureaus, we have two different
kinds of forfeiture. One is the seizure at the time of interdiction,
the other is a kind of forfeiture that is built after a judicial pro-
ceeding. They really are separate, and they can be viewed separate-
ly-
Justice clearly runs the latter, and DEA generally puts those
cases together, but to the extent that there is coordination with the
Treasury Department in, say, the financial aspects of the case, that
does not seem to be posing any problem.
Mr. Giuliani. Senator, may I just add something to what you are
saying?
Senator Biden. Sure.
Mr. Giuliani. I do not think seriously we are really here saying
that there are no problems in the coordination as among all of the
agencies that are involved in drug enforcement. There are prob-
lems, and there always will be.
John and I were assistant U.S. attorneys together in the South-
ern District of New York, 8 or 10 years ago, and there were really
problems then, and basically you had agencies almost shooting
with each other over who gets credit for, as you point out, who gets
credit for the arrest, or who gets credit for the informant, and who
gets to use the informant, and I think we have come a long way.
The prior administration, this administration, with the help of
the Congress, and a lot of other people are interested in this, and I
think we have come a long way in doing a much better job of co-
ordinating it. Usually the best way to coordinate an activity like
this, that ends up solving all of the problems, and that is pretty
much the philosophy that John has used at Treasury, and that we
have used at Justice, is to get the agents to work together. If you
can put them together in the field, working together on an investi-
gation, all of a sudden they find that they can share information,
that it is to their mutual benefit to share information, and a lot of
the stereotypes that one agency has about another breakdown.
When we first got involved in the coordination of the FBI and
DEA, there were an awful lot of stereotypes that the FBI had
about DEA, and that DEA had about the FBI. Judge Webster se-
lected one particular FBI agent to negotiate with another DEA
agent as to the guidelines that they would come out with, and the
agent, after about 3 or 4 days of negotiating, came to my office and
said, hey, you know something, those guys actually are pretty qood.
And that is exactly what has happened now with the FBI and DEA
working together.
There will still be problems, there will still be situations where
you want information faster than you get it, or you believe your
investigation is very important, and therefore it should be followed
up, and somebody disagrees. It is very important that we have
mechanisms for bringing those problems up to a high enough level
so that if it is necessary, John can sit down, as it has happened on
three or four occasions, I guess, with Judge Webster, and Bud
Mullen, and work out those problems, and any other ways in which
112
we can do that better, we are appreciative of considering, and
working on.
I think — and I do not mean this to sound like we are boasting,
but I think cooperation has worked between, at least Justice and
Treasury, Customs, DEA, and FBI, a lot better in the last 2 years,
just by virtue of getting together both at a high level and at the
agent level, than it ever has before, and there is no reason why
that would not continue. It is very important to build institutions
that accomplish that as well.
But I believe that cooperation is working better than it ever has
before, albeit that there are problems.
Mr. Walker. If I could just elaborate on that just a little bit.
There is naturally a built-in tendency on the part of every law
enforcement agency to build an esprit-de-corps a sense of eliteness
about itself, and this tends to inhibit coordination or cooperation,
because each agency likes to think of itself as something special.
Without attempting to break down that spirit, there are certain-
ly ways in which mutual respect could be generated between the
agencies. One is the use of the joint task force, and we have used
joint task forces more, I think, than they have been used in the
past, both in south Florida, in the joint task group that between
DEA, Customs, I mentioned earlier, and also in the interdiction
effort; but also largely through the efforts of Mr. Giuliani in estab-
lishing the 12 new joint task groups that were announced by the
President last October.
These will, we feel, contribute greatly to reduced tensions and
conflicts between agencies, increase cooperation, and maximize the
effort.
Also, on a more localized level, the prominent role that is being
played by U.S. attorneys, in running joint task groups, is a mecha-
nism that seems to be working. At Treasury, we like to work under
U.S. attorneys. We feel that this is a good mechanism for promot-
ing cooperation and coordination among agencies.
Senator Biden. If, at Treasury, you like this coordination, why is
it that there is the need for Treasury to have separate control of
their budget and their personnel in the Organized Crime Task
Force, I thought the Attorney General said to us last year that
there was not a need for the approach I was suggesting because the
task forces would allow him to have the authority they needed in
order to make the task forces work.
I am a little confused as to why budgetary control of your por-
tion of the task forces is back in Treasury.
Mr. Walker. I think, and I would like Rudy to comment on this,
I think one of the core principles of the new task force is that we
were not setting up a new law enforcement agency. We were
taking existing agencies, and providing a framework, a mechanism
for coordinating their activities in a meaningful way. We were not
setting up a new bureaucracy or authority to which the Congress
would appropriate funds.
So one of the principles that was established here was that each
agency would retain autonomy over its own people, in terms of ad-
ministrative controls, and also budget authority, with the exception
of the first year.
113
For the first year, we agreed that Justice would go forward and
ask for the funds, in order to expedite the starting up of these task
forces. But that was done to speed up the process in the first year
only, and was not intended to be any kind of precedent for the
future.
Obviously there are considerations, including congressional con-
siderations, that have a bearing on this. We have our own funding
levels before our Appropriations Committee.
Senator Biden. We misunderstood that, or at least I did. The
fiscal year 1983 budget message, which was sent up with the re-
quest said, and I quote,
Single appropriation will provide the Attorney General with the necessary man-
agement tool — meaning him — to reallocate resources among the organizational com-
ponents of the task force, as well as between the regions, with undue delay.
I guess that is your point.
As Cabinet officer with responsibility for task forces, the Attorney General must
have the authority over the resources to approve for the effort. Failure to provide
this authority would weaken the Attorney General's ability to coordinate the activi-
ties of many of the organizations of the three Cabinet agencies comprising this
effort.
Finally, it is believed that the single appropriation will reduce competition among
the participating agencies. Previously such efforts have evidenced competition for
resources among individual agencies at the expense of the overall effort. From the
perspective of Congress, a single appropriation will facilitate the legislative over-
sight and review of the process.
I do not think it was unreasonable for us to believe that was the
way in which this approach would continue. I would be very sur-
prised if the majority thought that it was not going to go that
route. It seems as though the reason that it is changing is that the
faction fighting is back.
Mr. Giuliani. It is unfortunate, Senator, that it was written that
way. You are absolutely right. It is certainly justifiable to conclude
from the way it was originally presented, and what you read, that
that was the permanent arrangement, the way in which the task
forces will be budgeted. But in fact, from the time that it was first
presented, it was supposed to be a budget that the Attorney Gener-
al would control the first year, for two purposes.
The one that John mentioned, which is because it had to be done
quickly, and second, so that it could be formed up with some coher-
ent overview of all of the agents that were going into it, and how
they would be deployed throughout the country, and then as soon
as possible, and I believe right from the very beginning, that that
was the second year.
As soon as possible, budget authority would be returned to the
agencies that were involved. Unfortunately, whoever wrote that,
concentrated on the first half, and not the second half
Senator Biden. Well, I have trespassed on your time. I will
submit a number of questions for the record.
I will conclude with one last question, and one more comment.
The question relates to the death penalty.
Without arguing the merits, or lack thereof, of the death penalty
as a deterrent, or whether or not it is constitutionally permissible,
or whether or not it is cruel and unusual punishment, I would
think this to be a very practical question.
114
There have been a number of cases, not in the hundreds, but
tens of cases, in the last decade and a half that you have document-
ed, where a person who in fact was convicted of a capital offense,
was later determined, as a consequence of the appearance of an ad-
ditional witness, or material in the file, or whatever, to be innocent
of the crime. This situation has surfaced in several Pennsylvania
cases in the last year and a half.
That is the reason I am against the death penalty. I do not have
any constitutional objection, quite frankly. I do not have an objec-
tion that relates to the morality of the issue. I do not believe that it
is beyond the power of the Government to enforce such a statute.
Consequently, what I have been attempting to promote as an al-
ternative to the death penalty, has been a provision that would re-
quire for capital offenses a minimum mandatory sentence with no
probation and no parole unless proof that the person did not
commit the crime came to light.
Now, my question to you is, as a practical matter, assuming for
the moment that the Biden alternative were to prevail, what would
be the Department's argument against such a provision?
Is it that this provision would clog the death row, or it would cost
too much money? What would be the rationale to oppose such a
provision in the law, if the administration would oppose it?
Mr. Jensen. Perhaps I did not get the full comport of your pro-
posal.
Senator Biden. It would be an alternative to the death penalty.
Mr. Jensen. The alternative would be life in prison?
Senator Biden. Without possibility of probation, or parole.
Mr. Jensen. Then that is simply the issue, on a policy level, or in
terms of the criminal justice, or a social level, is whether or not
you have the death penalty at all. It gets back to precisely the kind
of social decision that you are talking about before. It gets into the
whole issue of, in terms of morality, and the social value, and the
reason why a criminal justice system ought to have a death penal-
ty.
There are arguments about this, and I think what you are simply
taking is the argument that because of your feeling about the in-
ability of the system to arrive at a permanent verdict, that means
that you would not have a death penalty. That is an issue of
debate.
I would debate it on the other side. But I think that what your
argument would be, would simply create a system where you had
life imprisonment without parole as being the top level punishment
available.
I simply say that our argument, as we put it forward, is that the
punishment that ought to be available is the death penalty.
Senator Biden. Because it is a stronger deterrent?
Mr. Jensen. That is correct. It is almost an argument in terms
of, that it is, what society wants by way of a criminal justice
system sanction for the most egregious and outrageous offenses
committed in that society, and that I had some experience in Cali-
fornia, trying a lot of cases in this area, and they introduced the
concept you talk about, in terms of an alternative, that is, you
could have a death penalty or life in prison, without parole. That
was a new concept, it was not a part of California law before.
115
The experience we had was that jurors faced with that decision,
when they could decide either death penalty, or life imprisonment
without parole, did in fact choose the death penalty.
Senator Biden. One last comment. I think that the message that
Senator Kennedy and I will try to communicate to the Attorney
General, is in very little disagreement with the essential issues.
If I set out a list, and said you could only have four or five
things, I would be surprised if the four or five pieces of legislation
you picked were not the four or five that the majority of the
Senate would pick. I would hope that we could get to the point
where we are able to pick out what we can agree upon between the
Democratic package that was introduced and the administration's
package since they are similar in size and scope, because we have
to get something through the House.
I want to publicly thank your Department. I am probably harm-
ing your reputation by saying you are a terrific guy. Your congres-
sional liaison has been very, very good, and I hope that will contin-
ue. We hope that you do not pigeonhole the bill as a Democratic
bill, or a Republican bill, because that will serve only to defeat our
common goals.
You saw that happen with the criminal code omnibus bill. Well,
this is a minicriminal code, with additional provisions.
Let us work together to see what we can accomplish.
Thank you very much for your time. Good luck, gentlemen, in
Manhattan. I hope things work out well for you.
Thank you very much.
[Whereupon, at 12:48 p.m., the subcommittee adjourned, subject
to the call of the Chair.]
[The following was received for the record:]
116
FORMAL STATEMENT
OF
THE DEPARTMENT OF JUSTICE
BEFORE THE
SUBCOMMITTEE ON CRIMINAL LAW
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
REGARDING
S. 829. THE COMPREHENSIVE CRIME CONTROL ACT OF 1983
TITLE I — Bail Reform
The first title of the "Comprehensive Crime Control Act"
addresses a matter of the highest priority: the urgent need for
substantial improvements in federal bail law. In recent years,
there has been a growing consensus among members of the Congress,
the judiciary, the law enforcement community and the public at
large, that legislation to cure the striking deficiencies of our
bail laws must be enacted.
Certainly, it cannot be said that our current bail system is
in all respects a failure. Present law, the Bail Reform Act of
1966, provides a workable and responsive framework for releasing
non-violent offenders who pose little risk of flight, and this
beneficial aspect of current law is retained in our bail
amendments. However, it is with respect to the most serious
offenders, the habitual violent or dangerous defendant or the
well-heeled drug trafficker, that the system fails. These
failures are a source of growing frustration to effective law
enforcement and have fostered the public's increasing
disillusionment with a criminal justice system that too often
appears unable to protect the public safety or to assure that
criminals are brought to trial.
To address these problems, the bail reform title of our bill
would strengthen the ability of the courts to ensure that
defendants appear for trial and would, for the first time,
recognize defendant, dangerousness as a legitimate consideration
117
in all ball decisions. The ball reform provisions of our bill
are no doubt familiar to many of you. They are virtually
identical to comprehensive bail reform legislation passed by the
Senate last year by an overwhelming 95 to 1 vote and which, as
S. 215, Is now pending approval by the Judiciary Committee. As
was evidenced in this fully bipartisan vote for strong bail
legislation, the current bail reform movement is not a matter of
politics or Ideology. Rather, it is derived from more than
fifteen years of experience with our present ball laws — an
experience that has clearly illustrated the need for change.
For example, in South Florida, despite the fact that the
average bond for drug defendants is $75,000, seventeen percent of
these defendants never appear for trial. Bonds in the hundreds
of thousands of dollars are forfeited as major drug defendants
flee the country to avoid prosecution. For persons in the
enormously lucrative drug trade — a trade that has been estima-
ted to run in the tens of billions of dollars annually —
forfeiture of huge bonds has become a simple cost of doing
business and ultimately an easily met cost of escaping convic-
tion.
Although this alarming incidence of bail jumping points out
the need to improve current law, at least current law provides a
framework for addressing the problem of defendants who are very
serious flight risks. The problem of the release of extremely
dangerous defendants, however, is one that current law virtually
ignores. Two cases from the Eastern District of Michigan amply
illustrate the need to put considerations of defendant dangerous-
ness on an equal footing with considerations of risk of flight in
the courts' bail determinations.
In November of last year, George Gibbs was charged with the
armed robbery of a credit union. Despite the violent nature of
the offense, very strong evidence of his guilt, and the fact that
Gibbs was a suspect in four other armed robberies, the magis-
trate, over the protests of the government, set a $25,000 bond
with only a 10% deposit required, citing his inability under
current law to consider evidence of the defendant's dangerousness
in ■•ttlng bmil. Although a dlatrict judge changed th« bond to a
118
cash surety bond after an appeal by the government, the amount of
the bond was not increased, and Gibbs was able to meet it almost
immediately. Four days later, Gibbs and a partner held up a
bank, striking a teller, threatening to kill the assistant
manager, and shooting the police officer who pursued them as they
attempted to escape.
The second Michigan case also involved a defendant charged
with bank robbery. In 1979, Michael Dorris was convicted of the
armed robbery of a Michigan bank. Last year, within a few months
after Dorris had been released on parole, the same bank was
robbed at gunpoint again. Within hours, the FBI arrested Michael
Dorris for this second robbery. He was not far from the scene of
the crime and weapons and a large amount of cash were also
seized at the time of his arrest. Like George Gibbs, Michael
Dorris was soon released on bail. At a subsequent meeting with
his parole officer, Dorris was informed that in light of his
latest arrest, the officer would seek revocation of his parole.
Dorris, who under a rational bail system clearly should have been
held in custody in light of the seriousness of the offense
charged and his status as a parolee, simply got up and left when
the parole officer went to locate a marshal. Inadequate bail
laws could do nothing to stop the revolving door of the criminal
justice system. Eventually Dorris resurfaced, but only after
weeks of valuable FBI investigative effort had been wasted in
trying to locate him.
The Administration's proposed bail legislation, like similar
bills introduced in this and the last Congresses, sets out a
comprehensive statutory scheme that would for the first time
provide the federal courts with adequate authority to make
release decisions that effectively protect both the integrity of
the judicial process and the*public safety.
The most prevalent criticism of the current bail system is
that it does not permit the courts, except in capital cases, to
consider the danger a defendant may pose to others if released .V
V The broad base of support for permitting consideration of
defendant dangerousness in all pretrial release decisions is
cited in the Judiciary Committee's report on S. ^55^ in the last
Congress -- legislation that is for the most part identical to
the Administration's bail reform proposal. S. Rep. No. 97-317,
97th Cong., 2d Sess. 36-7 (1982).
119
The sole issue that may be addressed is likelihood that the
defendant will appear for trial. Thus our Judges are without
statutory authority to impose conditions of release geared toward
assuring community safety or to deny release to those defendants
who pose an especially grave danger to others. As a result, when
making release decisions with respect to demonstrably dangerous
defendants, Judges are faced with a dilemma: they may release
the defendant pending trial despite the fear that this will
Jeopardize the safety of others, or they can find a reason, such
as risk of flight, to detain the defendant by imposing a high
money bond. Many critics of current bail laws believe that too
often the resolution of this dilemma may cause the courts to make
intelle<3tually dishonest determinations that the defendant may
flee when the real problem is that he appears likely to engage in
further dangerous criminal conduct if released. Our law denies
the opportunity to address the issue of dangerousness squarely.
Federal bail law must be changed so that it recognizes that
the danger a defendant may pose to others is as valid a consid-
eration in the pretrial release decision as is the presently
permitted consideration of risk of flight. This change is one of
the most important elements of our proposed bail legislation.
Support for giving judges the authority to weigh risks to
community safety in bail decisions is widely based and is a
response to the growing problem of crimes committed by persons on
release — a problem that exists in spite of what many believe is
a not uncommon practice of detaining especially dangerous
defendants through the imposition of high money bonds. In a
recent study conducted by the Lazar Institute, one out of six
defendants were rearrested during the pretrial period. Nearly
one-third of these persons were rearrested more than once, and
some as many as four times. 2/ Similar levels of pretrial crime
were reported in a study of release practices in the District of
Columbia where thirteen percent of all felony defendants were
£/ Lazar Institute, "Pretrial Release: An Evaluation of
Defendant Outcomes and Program Impact" 48 (Washington, D.C.
August 1981).
120
rearrested. Among defendants released on surety bond, the form
of conditional release reserved for those who are the greatest
bail risks, the incidence of rearrest reached the alarming rate
of twenty-five percent. 3^/
Allowing the courts to consider evidence of dangerousness
and to impose conditions of release specifically geared toward
reducing the likelihood of further criminal conduct such as third
party custody or required drug or alcohol abuse treatment, would'
be a significant improvement in current law. It is, however,
only a partial solution, for we must recognize that with respect
to certain defendants, it will be clear that no form of condi-
tional release will be adequate to address the sigjiificant threat
they will pose to the safety of the innocent public if released.
Therefore, it is essential that amendment of our bail laws
include, as does our current legislative proposal, authority to
deny release altogether in such cases.
Pretrial detention has, in the past, been a very controver-
sial issue. While opposition to this concept still exists,
increasing numbers of legislators and persons involved in the
criminal justice system have come to realize that authority to
deny bail to extremely dangerous defendants is a necessity. V
Pretrial detention is, of course, already part of our bail
system. The authority of the courts to deny release to defen-
dants who are especially serious flight risks or who have
threatened jurors or witnesses has been recognized in case law.
Pretrial detention based on dangerousness was incorporated in the
District of Columbia Code passed by the Congress in 1970 and is
authorized under federal Juvenile delinquency statutes. More-
over, a significant number of federal defendants are held in
custody pending trial because they are unable to meet high money
3/ Inrtltut* for Law and Social Research, "Pretrial Release
and Misconduct in the District of Columbia" HI (April 1980).
V For a discussion of the consCltutlonallty of pretrial
■* detention, See S. Rep. No. 97-317, supra note 1 , at 37-8.
121
bonds?/ — and many argue that at least a portion of these cases
of detention result from the ^imposition of bonds that are more a
reflection of a Judge's understandable concerns about the threat
the defendant poses to others than of concerns that he will not
appear for trial.
Of course, the availability of pretrial detention authority
will not entirely solve the problem of bail crime, nor is
pretrial detention appropriate for other than a small, but ■
identifiable, . group of the most dangerous defendants. However,
where there is a high probability that a person will commit
additional crimes if released pending trial, the need to protect
the public becomes sufficiently compelling that a defendant
should not be released. This rationale — that a defendant's
interest in remaining free prior to conviction is, in certain
circumstances, outweighed by the need to protect societal
interests — is, in essence, that which has served to support
court decisions sanctioning the denial of bail to defendants who
have threatened jurors or witnesses or who pose significant risks
of flight.^/ In such cases, the societal interest at issue is
the need to protect the integrity of the judicial process.
Surely, the need to protect the innocent from brutal crimes is an
equally compelling basis for ordering detention pending trial.
Because of the importance of the defendant's interest which
is at stake when pretrial detention is considered, the authority
to deny release should be available only in limited types of
cases, only after a hearing incorporating significant procedural
safeguards, and only when the findings on which the detention
order is based are supported by clear and convincing evidence.
J/ For example, in fiscal year 1982, IB. 4^ of federal defend-
ants were subject to some period of pretrial detention, and
61.3% of those defendants were held for more than ten days.
1982 Reports of the Proceedings of the Judicial Conference of
the United States and Annual Report of the Director of the
Administrative Office of the United States Courts (herein-
after cited as "1982 Annual Report") 352-5 (Table D-13). It
is likely that a good proportion of the more substantial
• terms of pretrial detention were' due to difficulties in
meeting high money bonds.
6/ See, e.g., United States v. Wind, 527 F.2d 627 (6th Cir.
1975); United States v. Abrahams, 575 F.2d 3 (1st dr.),
cert, denied, 1*39 U.S. 621 (1978).
25-694 O - 84 - 9
122
The Administration's pretrial detention provision meets each of
these requirements, and so provides a framework in which deten-
tion will be ordered only when no other alternative is available.
Our legislation also contains a specialized pretrial
detention authority that would have been especially appropriate
in the Dorris case we mentioned. This provision allows a tempo-
rary ten-day detention of defendants who are arrested while they
are already on bail, parole, or probation. During this period,
the defendant may be held in custody while the original releasing
authorities are contacted and given an opportunity to take
appropriate action. A similar provision of the District of
Columbia Code has been cited by former United States Attorney
Charles Ruff as one of the most effective tools available to his
Office in dealing with recidivists.
As the statistics on bail jumping among drug defendants
noted earlier indicate, the problems with current federal bail
law aren't confined to the area of defendant dangerousness. The
goal of assuring appearance at trial — the very purpose of our
present statute — isn't being adequately met. Therefore, our
bail reform proposals include amendments to address this problem
as well. First, we provide clear authority for the courts to
inquire into the sources of property that will be used to post
bond and to reject the use of proceeds of crime for this purpose.
Our experience with drug defendants has shown that the forfeiture
of even very large bonds in these circumstances is not a suffi-
cient disincentive to flight. Second, our proposals codify the
existing authority we mentioned earlier to deny release entirely
to persons who are especially severe flight risks. Third, our
proposal would enhance the deterrent value of the penalties for
bail jumping by making them more closely proportionate to the
severity of the offense with which the defendant was charged when
he was released and requiring that they run consecutively to any
other term of imprisonment imposed i
A final aspect of our proposal — one that has been incorpo-
rated as well in other bail reform bills now before the Congress
— would address what the Attorney General's Task Force on
123
Violent Crime described as "one of the most disturbing aspects"
of current federal bail law, namely a standard which presumptive-
ly favors release of convicted persons who are awaiting imposi-
tion or execution of sentence or who are appealing their convic-
tions. The Task Force's reasons for recommending that this
standard be abandoned are sound ones:
"First, conviction, in which the defen-
dant's guilt is established beyond a
reasonable doubt, is presumptively
correct at law. Therefore, while a
statutory presumption in favor of release
prior to an adjudication of guilt may be
appropriate, it is not appropriate after
conviction. Second, the adoption of a
liberal release policy for convicted
persons, particularly during the pendency
of lengthy appeals, undermines the
deterrent effect of conviction and erodes
the community's confidence in the
criminal justice system by permitting
convicted criminals to remain free even
though their guilt has been established
beyond a reasonable doubt."'/
In the Administration's bail proposal, post-conviction
release would be available only in those cases in which the
convicted person is able to produce convincing evidence that he
will not flee or pose a danger to the community and, if the
person is. awaiting appeal, that his appeal raises a substantial
question of law or fact likely to result in reversal of his
conviction or an order for a new trial. No lesser standard, In
our view, is justifiable, particularly since the reversal rate
for federal convictions is only approximately ten percent. 5/
Substantial improvements in federal bail laws are urgently
needed. We can no longer have a statutory scheme that requires
Judges to ignore disturbing evidence of defendant dangerousness
and we must do more to assure that defendants who are seeking
release meet their responsibility to appear for trial. The ball
amendments proposed by the Administration, and other similar ball
reform legislation introduced again this year in the Congress
such as S. 215, fulfill these needs and provide a framework for
the courts to strike an appropriate balance between the l«sitl-
7/ Attorney General's Task Force on Violent Crime,
- Washington, , D.C. , August 17, 19B1, at 52.
§/ In fiscal year 1982, the reversal rate for federal criminal
cases was 9.7%. I9B2 Annual Report, supra note 5 at 196.
124
■at* interests of the defendant and the equally legitimate
interests of the public in preserving the integrity of our
Judicial system and protecting community safety.
TITLE II - SENTENCING REFORM
I. Introduction
The sentence in a criminal case is imposed at the end of a
highly structured process designed to assure fairness to the
defendant and to the public. Ideally, this sentence will
represent society's statement as to the relative seriousness of
the defendant's criminal conduct, and will deter criminal conduct
by others. Unfortunately, despite the best efforts of the
federal criminal justice system under current law, the sentence
in a particular criminal case frequently fails to achieve these
goals. This is true in large measure because the system fails
not only to provide appropriate sentences in many individual
cases, but even fails to provide a mechanism that might be
capable of consistently achieving such a result.
In the last ten years or so, a consensus has developed among
persons of different political views that the current federal
sentencing system is riddled with serious shortcomings. More
recently, there has developed substantial sirpport for an approach
by'which the shortcomings might be remedied — the creation of a
system such as that set forth in title II of S. 829, a system
that couples sentencing guidelines with determinate sentencing.
These provisions are substantially identical to sentencing
provisions approved by this Committee and the full Senate several
times since the enactment of S. 1437 in 1978, most recently in
the past Congress with the repeated approval of the sentencing
provisions contained in S. 2572 and added by the Senate to H.R.
3963. These provisions also formed the basis of a sentencing
reform package passed by the State of Minnesota, which the
National Academy of Sciences has recently reported to be the most
125
■uccesaful of any of the State or local sentencing reform
efforts. The Minnesota system, while providing less
sophisticated guidelines than we contemplate for the federal
system, is the only State or local system in operation that is
similar to this proposal in every significant respect. In
addition, I was pleased to note that the Judicial Conference of
the Dnited States has recently proposed legislation that contains
a form of determinate sentencing guidelines system.
II. Sentencing Onder Current Law and Practice
A. The Sentencing Process
A federal judge might sentence only a few dozen
offenders a year, and a particular offender before him for
sentencing might be the only person he has sentenced in a year or
even longer for committing a particular offense. The judge,
while trained in the law, has no special competence in imposing a
sentence that will reflect society's values, and federal statutes
do little to assist in correcting this problem.
Current federal law provides a sentencing judge with
■the discretion to impose sentence pursuant to numerous sentencing
options and little or no guidance as to how to choose emiong the
options. The statutes contain no statement of the purposes of
sentencing, aside from occasional, vague references to
rehabilitation, and no direction to the judges as to the offense
and offender characteristics that should be considered in
determining an appropriate sentence. Federal sentencing law is
limited mostly to the provision of a maximum term of imprisonment
and maximum fine that may be imposed for violating a particular
criminal statute, and these maximum sentences only indicate the
congressional view of the appropriate sentence for the most
serious offense committed by an offender with the most serious
criminal record.
126
As a result of this absence of guidance, judges are
left to impose sentences according to their own notions of the
purposes of sentences. They are not required to state their
reasons for choosing a particular sentence, and many of them do
not. Sentences are reviewcible only for illegality or for
constitutional violation; a sentence that is substantially out of
proportion to those for similar offenses committed by similar
offenders is not otherwise subject to challenge.
B. Sentencing Options
While current law provides sentencing alternatives of
probation, fines, imprisonment, and restitution, the law fails to
provide a mechanism to inform sentencing judges how they should
choose sunong them and fails to assure that each option is useable
to serve the purposes of sentencing in the best way possible.
1. Probation. — Probation is treated as a suspension
of the imposition or execution of a sentence rather than as a
sentence itself. Partly for that reason and partly because
current law does not recommend possible probation conditions in
any detail, there has been little incentive to impose conditions
on probation that might make it a more effective punitive or
remedial sanction — it is generally viewed solely as a vehicle
for rehabilitative efforts. This is especially troubling because
of the crowded conditions of our prisons. As the Attorney
General has stated recently, effective use of probation
conditions for many non-violent offenders could alleviate much of
the stress on our prison capacity without undermining the
desirability of imposing prison sanctions in appropriate cases.
' 2. Fines. — The maximum fine levels for criminal
offenses vary inexplicably. They usually also reflect penalty
levels of a century or more ago, and today are much too low to be
a realistic measure of the seriousness of most offenses. They
are often so low that they are not a realistic substitute for a
127
term of imprisonment when the nature of the offense might
otherwise justify their use. Even if a fine is imposed, it may
be difficult to collect under current law, which relies heavily
on cumbersome and inconsistent state collection procedures.
3. Restitution. — The newly enacted Victim and
Witness Protection Act of 1982 contains, as you know, important
new provisions for restitution to victims of crime in many
federal criminal cases. Early experience with the provisions
demonstrates that additional guidance as to how to determine the
amount of restitution and how a payment schedule might be
tallorei) to the financial situation of the defendant would be
helpful to sentencing judges.
4. Impr i sonment . — Jlesponsibility for imposing a
term of imprisonment and determining its length is divided today
Joetween the judicial and executive branches. Under a two-step
process, the sentencing judge imposes a term of imprisonment and
sets the outside limit of the period of time a defendant may
spend in prison, and then the Parole Commission decides what
portion of the maximvim term the defendant will actually serve.
This practice was originally based on an outmoded 19th Century
rehabilitative theory that has proved to be so faulty that it is
no longer followed by the criminal justice system — yet the
outmoded process remains in place trying as best it can to use a
more modern approach to sentencing.
Current imprisonment statutes were enacted at a
time in which the criminal justice system utilized a "medical
model" for determining when a prisoner should be released.
Criminality was viewed as a disease that could be cured through
rehabilitative programs in a prison setting. While the purpose
of the sentence was to rehabilitate, no one could know when that
reheOsilitation would occur. Therefore, a defendant was sentenced
to a term of imprisonment intended to be longer than the time it
would take for rehabilitation to occur. Periodically, parole
authorities would examine the prisoner's adaptation to the prison
128 '
Betting in order to determine whether he had been rehabilitated
and could be released into society before the expiration of his
imposed prison term. .
There are two principal problems with this theory:
First, many sentences to terms of imprisonment are designed to
serve purposes other than or in addition to rehabilitation. They
may be designed to deter future criminal conduct by the defendant
or others, to protect the public from criminal conduct of the
defendant, or to punish the defendant for his conduct. Periodic
review of prisoh behavior is irrelevant to any of these purposes;
a sentence for any of these purposes logically should be set for
a definite term.
Second, even if the sentence is for purposes of
rehabilitation, the theory leading to an indefinite term is
unsound. Behavioral scientists hiave concluded in recent years
that there is no reliable means of inducing rehabilitation. More
importantly to consideration of this theory, they have also
concluded that no one can tell from a prisoner's behavior in
prison or before a parole board whether or when he has become
rehabilitated. Consequently, the basic reason for an
indeterminate sentence and thus for the existence of parole
boards has disappeared.
The federal Parole Commission today acknowledges
that it cannot tell from a prisoner's behavior whether or when he
has become rehabilitated. It therefore no longer even attempts
to accord its practice with the original theory. Instead, with
few exceptions, it releases prisoners at the times specified by
the Commission's self-developed guidelines — guidelines that are
based upon factors known at time of sentencing. Since the
Commission's release determinations need no longer await an
opportunity to observe the prisoner's conduct in confinement,
there is no reason why the Commission cannot inform a prisoner of
his proposed release date near the time of his incarceration —
and the Commission now does so in almost all cases.
129
Thus two branches of government — at
approximately the same time and based on essentially the saxne
information — set two different sentences to be served by the
same defendant, with one of these sentences publicly announced
and the lower one that will actually be served announced in
private. This occurs because of attempts by the criminal
justice system to adapt an outmoded mechanism to modern thinking
about sentencing. The result is that the judges attempt to
adjust their sentences to override parole guidelines they see as
inappropriately harsh or lenient, and that the parole
authorities, in attempting to even out the resulting disparity in
sentences, regularly ignore the actual sentences imposed by
judges.
5. Specialized sentencing statutes. — Finally,
current law contains a number of specialized sentencing statutes
that a judge may use in sentencing a specific category of
offenders, such as young offenders or drug addicts. These
statutes provide little guidance, other than some references to
reheibilitation, as to when a judge should use them for a person
in the category of offender covered by the statute and when he
should not. They also fail to take into account the fact that a
particular offender may belong to more than one category covered
by these statutes.
One of these statutes, the Youth Corrections Act,
has caused particular difficulties. Sentencing judges differ as
to whether it should be used at all for violent offenders. Thus,
similarly situated offenders sentenced by different judges may be
sentenced either under the Act or to a regular adult sentence.
Especially since the parole guidelines generally provide less
prison time for persons sentenced under the Youth Corrections Act
than under regular adult sentencing, the result can be that two
young offenders with similar criminal histories who are convicted
of similar violent crimes will serve different prison terms
simply because they were sentenced under different statutes.
130
In recent years, a more difficult problem has
arisen with the Youth Corrections Act — the courts have
construed the Act to require that the Bureau of Prisons separate
YCA offenders from adult offenders. Prisons officials have found
the results of complying with these court decisions to be
undesirable. Because there are only 1200 YCA offenders now in
custody, only three institutions — located in Petersburg,
Virginia; Englewood, California; and Morgantown, West Virginia —
have been set aside to house them, with the result that most of
these young offenders must be placed long distances from their
homes and families. The placement of all YCA offenders in three
institutions has also, in effect, negated the classification
process for these inmates. The Bureau classifies inmates into
six categories, with level one representing the minimal risk and
level six representing the maximum risk. The result of placing
these offenders in three institutions is a mixing of the
criminally sophisticated with the unsophisticated, the hardened
with the naive, the assaultive with the easily victimized, and
the first time offender with the repeater. The distance from
home, combined with the limited ability to separate these
prisoners according to the prisoner classification system,
compounds discipline problems with managing a youthful population
more prone than an older population to act out and be disruptive.
The Youth Corrections Act should be repealed, not
only because age is only one factor that may play a role in
determining the appropriate sentence, but because the separate
facilities for young offenders sentenced under the Act have
proved unworkable. Thus, the Department of Justice strongly
disagrees with the suggestion of the Judicial Conference in its
proposed bill that sentencing judges be permitted to sentence
young offenders to separate facilities.
131
C. Consequences of the Current System
The almost inevitable result of the proliferation of
sentencing options and the lack of statutory guidance as to how
to use them is considerable disparity in sentences imposed by
federal judges. This disparity has been documented in numerous
studies, including one conducted by the Federal Judicial Center
of district judges in the Sc'cond Circuit and a more recent study
conducted for the Department of Justice by INSLAW, Inc. and
Yankelovich, Skelly and White, Inc. In the latter study, 208
federal judges were presented with 16 hypothetical cases. They
agreed in only 3 of 16 cases on whether to sentence the defendant
to prison. The study found that 21 per cent of sentence
variation was due to the tendency of some judges to impose
generally harsher or more lenient sentences than other judges,
rather than to differences in offense or offender
characteristics, and that even more variation was due to the
tendency of a particular judge to impose harsher or more lenient
sentences than other judges for particular classes of offenses or
offenders.
Various attempts by the Parole Commission and the
judicial branch to reduce this disparity have been ineffective.
The parole guidelines have served to reduce disparity in terms of
imprisonment, but, as a recent General Accounting Office study
shows, they have not been fully successful in doing so. And, of
course, the parole guidelines cannot do anything about a
probationary sentence that should have been a prison sentence or
vice versa, or about an inappropriate level of fine or
restitution, or about a prison term that makes a prisoner
ineligible for parole on his guidelines date or results in his
release before that date.
The judicial branch now supplies sentencing judges with
information in the pre-sentence report concerning the parole
guidelines probably applicable to the defendant and the kinds and
132
iMiftlia of ■•ntences that are Imposed nationwide and In the
judge's district for the defendant's offense. I understand that
it is in the process of improving its data colliection to include
nore detailed information on sentences imposed on persons with
particular offense and offender charajiteristlcs. At this stage,
the information is useful to Inform judges of past sentencing
practices; it is not designed to alter those practices that need
to be altered to assure that they adequately reflect sentencing
The perception of sentencing disparity has serious
consequences for the public and the criminal justice system. It
tends to encourage defendants to relitigate their guilt
continually. Combined with the artificial process by which
judges Impose long prison terms and parole authorities set early
release dates shortly thereafter, it serves to undermine public
confidence in the criminal justice system, thus robbing the
system of some of its potential deterrent effect.
III. Sentencing Under Title II of the Bill
Title II of the bill would completely revise current law to
legislate the purposes of sentencing, to create a mechanism to
assure rationality and fairness in sentences designed to carry
out those purposes, and to provide appellate review of sentences
to assure their legality and reasonableness.
A. Legislatively Prescribed Purposes
Title II would for the first time give legislative
recognition to the appropriate purposes of sentencing. The
stated purposes specifically Include reflecting the seriousness
of the offense and just punishment, deterrence of criminal
conduct, protection of the public from further crimes of the
defendant, and providing rehabilitation programs in the most
effective manner. The bill deliberately does not favor one
purpose over another, since any one of these purposes may be the
133
major purpose of a sentence in any given case. For example, the
the major purpose of a sentence to imprisonment for a violent
offender may be just punishment while the major purpose of a
sentence to probation conditioned on obtaining mental health
treatment for a non-violent offender may be rehabilitation. The
bill does recognize that rehabilitation should not be the
purpose of sentencing a defendant to imprisonment nor a factor in
determining the length of a prison term. Of course, this does
not mean that the Department will not continue to make every
effort to provide suitable rehabilitation programs to prisoners
in its custody. It is simply unfair to send a person to prison
for rehabilitation or base the length of that term on whether he
is rehabilitated when we recognize that no one knows when or
whether a prisoner has been rehabilitated.
B. The Sentencing Process
The sentencing judge would impose sentence after
considering the purposes of sentencing and sentencing guidelines
promulgated by a commission in the judicial branch that would
recommend an appropriate kind and range of sentence for each
combination of offense and offender characteristics. The judge
would be required to impose sentence in accord with the
guidelines recommendation unless he found that a factor in the
case was not adequately considered in the guidelines and should
affect the sentence. If the judge imposes sentence outside the
guidelines, he must state specific reasons for doing so. The .
question whether the sentence is reasonable is subject to
appellate review at the request of the defendant if the sentence
is above the guidelines and at the request of the government,
made on behalf of the public and personally approved by the
Solicitor General or the Attorney General, if it is below the
guidelines. If the sentence was to a term of imprisonment, the
term imposed by the judge would represent the actual time served
less a small amount of credit that could be earned for complying
with institution rules. The Parole Commission and its function
134
of Betting release dates would be abolished, and the current
practice of judges artificially inflating prison terms because of
the parole system would be eliminated. If the sentencing judge
thought a defendant would need street supervision following his
tern of imprisonment, he could impose a term of supervised
release to follow the term of imprisonment.
Sentencing guidelines and policy statements would be
promulgated by a United States Sentencing Commission in the
judicial branch. The Commission would consist of seven members
who would be appointed by the President by and with the advice
and consent of the Senate, after the President had consulted with
judges, prosecutors, defense counsel, and others interested in
the criminal justice system for their recommendations. The
Commission members, including any members from the federal
judiciary, would serve full time and would be paid at the rate of
judges of the federal appellate courts. The bill provides for a
staff of highly qualified professionals for the Commission, and
directs that the Commission, in addition to promulgating
guidelines, engage in sentencing research and training.
C. Sentencing Options
Each of the sentencing options would be improved under
title II — and the sentencing guidelines will enable the system
to make the most effective use of these improved sentencing
options.
1. Probation. — Probation would become a sentence in
itself, rather than a deferral of imposition or execution of
another form of sentence. If a sentencing judge imposed
probation in a felony case, he would be required to impose, at a
minimum, a condition that the defendant pay a fine .or restitution
or engage in community service. In addition, the judge would be
required to impose as a condition of probation in every case a
prohibition against committing a new offense. The bill also
135
lists a niunber of new conditions that may be imposed on s
sentence of probation for consideration of the Sentencing
Commission and the judges.
2. Fines. — Title II significantly increases maximum
fine levels for most federal offenses. The maximums are
increased to a quarter of a million dollars for an individual
convicted of a felony and half a million dollars for «n
organization convicted of a felony. The amount within that
maximum will be determined according to the sentencing guidelinas
and will be based in part on the defendant's ability to pay and
the seriousness of the offense. Fine collection procedures will
be improved by permitting reliance on lien procedures patterned
after the federal tax laws.
3. Restitution. — Restitution provisions are
substantially similar to the provisions in the Victim and Witness
Protection Act of 1982, with the provisions dovetailed into the
new sentencing provisions. This will permit the sentencing
guidelines and policy statements to provide more detail than is
present in current law as to how the amount of restitution should
be calculated and methods by which restitution can be imposed so
that it can be paid, for example, in installments if the
defendant is a salaried en^loyee. S. 829 also provides for
government assistance in collecting unpaid restitution, a measure
we believe will improve the enforceability of an order of
restitution.
4. Imprisonment. — As discussed earlier, title II
completely changes the way in which the length of a term is
imposed, abolishing early release on parole and converting to a
system i»i which the sentence imposed by the judge represents the
actual time to be served less good time.
It should be noted that S. 829 differs from the
sentencing provisions in S. 668 and S. 830 in two respects.
136
First, it extends slightly the maximvun terms of imprisonment that
may be imposed for a particular grade of offense. This will give
the Sentencing Commission more flexibility in fashioning
sentencing recommendations for the most serious offenses.
Second, S.829 does not provide for a repeated reexamination by
the courts of long sentences. The Department of Justice is of
the view that such a provision only serves to create unnecessary
and time-consuming court hearings that are contrary to the
purpose of creating a system in which final sentences are
publicly announced at the time of sentencing. The defendant will
have had an earlier opportunity to appeal his sentence if it is
unusually high, and we believe that one review is sufficient. S.
829, like the other bills, does permit reexamination of a
sentence in other limited circumstances. The Bureau of Prisons
may request reduction of a sentence for extraordinary and
compelling reasons, such as terminal illness. In addition, if
the sentencing guidelines for a particular offense are lowered
and it is consistent with a policy statement of the Sentencing
Commission, the court, on its own motion or at the request of the
defendant or the Bureau of Prisons, may reduce the sentence of a
defendant sentenced under the old guidelines. We believe these
limited opportunities to change sentences are sufficient to
assure reconsideration of sentence whenever justified.
5. Specialized sentencing statutes. — S. 829 would
repeal all the specialized sentencing statutes that create
proviaions applicable to only one category of offender. The
guidalincs system is a far preferable method of determining an
appropriate -sentence for offenders with particular
characteristics since it provides for systematic consideration of
all offender characteristics at the same time rather than one
isolated characteristic.
D. Advantages of Title II Over Current Law
Title II provides numerous advantages over currant law. The
Boct la^pertant of these is that it will provide a sentsncing
137
mechanism whose purpose is to assure both fair sentences and the
appearance of fail sentences. The sentencing guidelines will
enable the sentencing judges to determine an appropriate sentence
for a defendant with a particular criminal history convicted of a
particular offense, knowing that the sentence is fair as compared
to the sentences for all other offenders. Everyone, including
the defendant, the public, and those in the criminal justice
system charged with implementing the sentence, will know at the
time of sentencing exactly what the sentence is and why it was
imposed. The characteristics of the offense and the offender
that result in a sentence different from that for another
offender will be apparent — and if a sentence is inappropriate,
it can be corrected on appeal. The appeal mechanism has another
advantage over current law — it will result in the development
of a body of case law concerning whether particular reasons
legally justify imposing sentences outside the guidelines. The
bill permits not only defendant appeal of an unusually high
sentence but government appeal of an unusually low one.
Government appeal of sentence — which is clearly constitutional
under the case law and is supported by the Judicial Conference
assures that balanced case law will develop on questions of the
appropriateness of sentencing either above or below the
guidelines.
Title II also makes the sentencing options available to a
judge more effective. In particular, it makes probation and
fines more useable as options to incarceration in appropriate
cases. This usefulness is enhanced by placing these options in a
sentencing guidelines system that will recommend when their use
is appropriate and when it is not.
Title II should also save the government money after the
initial start-up phase. It replaces the expensive and cumbersome
parole system with a small Sentencing Commission that will not be
Involved in individual cases. It may reduce somewhat the
rep«at*d challenges to a conviction caused by the fact that a
25-694 0-84-10
138
defendant thinks his sentence is too high. It may also reduce
the caseload of probation officers, since it will not
automatically result in post-release supervision of an offender
if such supervision is unnecessary.
Before closing the discussion of title II, I should note
that the Department welcomes the support of the Judicial
Conference of the United States of some form of determinate
sentencing guidelines system with appellate review of a sentence
outside the guidelines. However, the Department wishes to note
particular disagreement with two major substantive points of the
Judicial Conference proposal. First, the Department would make
the Sentencing Commission a full-time body with members selected
after participation by all three branches of government rather
than, as proposed by the Judicial Conference, a part-time body
selected only by the judicial branch. We believe that it is
important that the work of the sentencing guidelines agency be
carried out by a highly visible entity that is able to devote its
full energies to creation of sound federal sentencing policy —
and that this is especially important at the initial stages of
guidelines development and implementation.
Second, we disagree with the intriguing suggestion of the
Judicial Conference that the Parole Commission be retained with a
substantially altered role. Under the proposal, the judge, after
considering sentencing guidelines, would set both the parole
eligibility date for a convicted defendant sentenced to prison
and his maximum term of imprisonment. The defendant would be
released on his parole eligibility date unless the Parole
Commission determined tRat he had not substantially complied with
prison rules, in which case the Parole Commission would set a
release date within the maximum. The Parole Commission would set'
conditions of parole release and would determine the consequences
of parole violations. These provisions would, in effect, keep an
expensive and cumbersome agency in existence primarily to carry
139
out a function that the Bureau of Prisons perfonns today and
should continue to perform — that of determining credit toward
service of sentence for good behavior. In addition, the proposal
seems to perpetuate a problem with current law: the person who
receives street supervision following his time in prison is the
one who has time remaining on hie sentence rather than
necessarily the person who needs supervision, and the better the
prisoner complies with prison rules the longer his street
supervision. The result is a waste of resources on supervising
defendants who may not need it at the same time the system fails
to supervise others who should be supervised.
IV. Conclusion
The Administration strongly recommends the passage of title
II of S. 829. We do have a number of minor technical suggestions
that we would like to submit to the Subcommittee shortly.
TITLE III - The Exclusionary Rule
Title III of the bill sets oiir a modification of the Fourth
Amendment exclusionary rule to restrain it to its proper role,
namely deterring unlawful police conduct. Our proposal is
identical to that submitted by the Administration and introduced
by Chairman Thurmond as S. 2231 in the 97th Congress. Our
proposal is, simply, that the exclusionary rule would not be
applied in cases in which the law enforcement officers who
conducted the search acted in a reasonable good faith belief that
their actions were lawful.
Before discussing this proposal in greater depth, I would
like to discuss the origin and development of the rule and some
specific cases which illustrate the very real contemporary
problems created by the rule in quite a large number of cases.
At the outset, however, I think it is important to address one of
the most seriously misplaced arguments raised in the current
debate over the rule, the impact of the rule on the criB« rate.
140
Supporters of the rule claim that advocates for modification of
the present rule argue incorrectly that reforming the rule will
reduce the crime rate. The fact, however, is that 'advocates for
reform do not claim that any such change is a panacea for crime
rate reduction. Any thoughtful consideration of contemporary
crime must recognize, unfortunately, that there is no single
panacea. On the other hand, advocates for reform do point out
that the rule operates to free known murderers, robbers, drug •
traffickers and other violent and non-violent offenders and .that
a rule of evidence which has such a result without a reasonable
purpose to support it is intolerable.
These heavy costs extracted from society by the rule have
not gone unnoticed by the Supreme court. In Stone v. Powell , 428
U.S. 465, 490 (1975), the Court stated that the rule "deflects
the truthfinding process and often frees the guilty." The Court
has noted that its "cases have consistently recognized that
unbending application of the exclusionary sanction to enforce
ideals of governmental rectitude would impede unacceptably the
truthfinding functions of the Judge and jury." United States v.
Payner, 44? U.S. 727, 734 (198O). The Court's recognition of the
price exacted by the rule now causes it to answer the question of
whether the rule should be applied in a particular context "by
weighing the utility of the exclusionary rule against the costs
of extending it..." Stone v. Powell, supra at 489.
The Rule and its Development
In tracing the development of the rule it is important at
the outset to recall the specific words of the Fourth Amendment
upon which the rule is based: "The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated."
It is apparent that the "exclusionary rule" itself is not
articulated in the Fourth Amendment or, for that matter, in any
part of the constitution, the Bill of Rights, or the federal
criminal code. The exclusionary rule is, rather, a judicially
141
declared rule of law created In 191'^. when the United States
Supreme Court held In Weeks v. United States, 232 U.S. 383, that
evidence obtained in violation of the Fourth Amendment is
inadmissible in federal criminal prosecutions.
This doctrine was criticized by many commentators from the
start, but the rule became firmly implanted in the federal
criminal justice system. The states, however, were divided In
their opinion of the rule. In the three decades following Weeks,
sixteen states adopted the rule while thirty-one states refused
to accept it.
It was not until 19t9 that the Supreme court was squarely
confronted with the question of whether the exclusionary rule
should be applied to state criminal prosecutions. In Wolf v.
Colorado, 338 U.S. 25 (19^9), the court. held that although the
guarantees of the Fourth Amendment applied to the states through
the due process clause of the Fourteenth Amendment, the Four-
teenth Amendment did not forbid the admission of evidence
obtained by an unreasonable search and seizure. Later, in Mapp
V. Ohio, 367 U.S. 6'43 (1961), the Court reversed its decision in
Wolf and held that because the Fourth Amendment right of privacy
was enforceable against the states through the Fourteenth
Amendment, "it is enforceable against them by the same sanction
of exclusion as is used against the Federal Government."
When first imposed by the Supreme Court In 191t, the
exclusionary rule was justified both as a means of deterring
unlawful police misconduct and on a judicial integrity ground,
which sought to prevent courts from being accomplices in willful
constitutional violations. Over time, it has become clear that
the deterrence rationale is the foremost reason behind the rule.
Cases such as Stone v. Powell , supra, Michigan v. DeFilllppo, 4M3
U.S. 31 (1979), United States v. Peltier, H22 U.S. 531 (1975),
and United States v. Calandra, 41M U.S. 338 (1974), have clearly
established that today the rule will be invoked to protect Fourth
Amendment rights only when to do so is deemed efficacious as a •
deterrent to unlawful conduct by law enforcement authorities. In
consistently focusing on the deterrence rationale in defining and
limiting the application of the rule, the Court has all but
142
ignored the judicial integrity ground. At any rate, to the
extent that notions of "judicial integrity" are still a basis for
the rule's retention, the Supreme Court in Peltier, supra, has
stated that "the 'imperative of judicial integrity' is also not
offended if law enforcement officials reasonably believed in good
.faith that their conduct was in accordance -with the law..." 422
U.S. 531, 537-38.
Although the Court recognizes deterrence as the rule's
paramount purpose, it has not limited the rule only to those
situations in which the law enforcement officer's conduct is
susceptible to being deterred. For example, courts continue to
suppress evidence seized by law enforcement officers during
searches conducted pursuant to duly authorized warrants obtained
in good faith but later found defective by an appellate court.
Such was the situation in United States v. Alberto Antonio Leon
(9th Cir. Mar. 4, 1983)- In that recent case, an informant
advised police officers that he had seen two named persons
selling drugs from their residence five months before. On the
basis of that tip, the police conducted a one-month surveillance
of the two people and their residence. The surveillance event-
ually expanded to cover two other residences and other persons
with whom the two earlier identified people had been associating,
the circumstances strongly suggesting that all persons and
residences were involved in narcotics trafficking. After
consulting with three assistant district attorneys, the police
obtained warrants from a state court judge for the search of the
residences and various automobiles belonging to the suspects.
The searches produced narcotics and narcotics paraphernalia.
The defendants were charged with various drug violation's but
a district judge ruled that the search warrants were defective
because the informant's information was probably stale. Much of
the evidence obtained by the search was suppressed. The Ninth
Circuit affirmed over the objection of Justice Kennedy, who
observed In his dissenting opinion that the affidavit in support
of the warrants "sets forth the details of a police investigation
conducted with care, diligence, and good-faith."
143
United States v. Shorter, 600 F.2d 585 (6th Cir. 1979), !•
another example of the exclusionary rule being applied where an
authorized search warrant Is Invalidated by a second Judge or
court. In that case, local police and agents of the Federal
Bureau of Investigation (FBI) arrested a suspected Ohio bank
robber at his home. After the arrest, the FBI agent telephoned a
federal magistrate and stated his grounds for a search warrant
which was then issued by the magistrate as permitted by law. The
subsequent search produced incriminating evidence, including bait
bills and a firearm. The trial Judge ruled the search lawful,
but the conviction was reversed on appeal. The appellate court
decided that although the officer had in fact been placed under
an oath by the magistrate which incorporated all the testimony
already provided in the course of reciting the grounds for the
warrant, the failure of the magistrate to require the oath at the
beginning of the telephone conversation violated the law because
the applicable Federal Rule requires that the oath be obtained
"immediately."
These cases involved disagreements between judges about
Judicial conduct — there is no police misconduct involved. The
police were carrying out their duties as society expects them to
do: the officers provided their information fully and honestly
to the court and proceeded to carry out the orders of the court
once the warrants were issued. Suppression of evidence in
Instances such as these does not serve the purpose of the
exclusionary rule, the deterrence of police misconduct. In fact,
it only serves to damage both a community's perception of Justice
and the morale of law enforcement officers who have followed the
rules only to have the evidence suppressed on the premise that
they have violated the Constitution. Proper police conduct is
thereupon falsely labeled as illegal.
The deterrent purpose of the exclusionary rule also is not
served when courts apply the rule to situations where the
appellate court cases are not at all clear, where the law is
thoroughly confused or even in situations where the cases are in
flat contradiction. Police often are confronted with the
144
question of whether to conduct a warrantless search in the field
when the circumstances they are facing are not covered by
existing case law.
For example, the rule was applied in precisely this type of
situation in Bobbins v. California, U.S. , 101 S. Ct . 2842
(1981). In that case, the Court excluded evidence of a substan-
tial quantity of marihuana found in a car trunk in a decision
largely based on two previous cases, United states v. Chadwick,
433 U.S. 1 (1977) and Arkansas v. Sanders, MH2 U.S. 753 (1979),
neither of which had been decided at the time of the search in
Bobbins in 1975. On the very same day, the Court decided another
case, Hew York v. Belton, U.S. , 101 S. Ct . 2860 which was
remarkably similar factually. In both oases, police officers
lawfully stopped a car, smelled burnt marihuana, discovered
marihuana in the passenger compartment of the car, and lawfully
arrested the occupants. Thereafter, in Bobbins , the officer
found two packages wrapped in green opaque paper in the recessed
rear compartment of the car, opened them without a warrant, and
found 30 pounds of marihuana. In Belton, the officer found a
jacket in the passenger compartment, unzipped the pocket without
a warrant, and found a quantity of cocaine.
Both cases required an analysis of the "automobile excep-
tion" cases, such as Chadwick, which pertain to the validity of
warrantless searches of cars and their contents. When the Court
announced its decisions in Belton and Bobbins, three justices
opined that both searches were legal; three Justices opined that
both were Illegal; and three justice controlled the ultimate
decision that Bobbins was illegal and Belton was legal. When
Bobbins was finally decided, 11 judges had reviewed the search.
Seven found it valid and seven invalid.
Moreover, the decisions hardly clarified the law of search
and seizure in this area. As stated by Justice Brennan in his
dissent in Belton:
"The Co,urt does not give the police any 'bright
line' answers to these questions. More important,
bsoausa the Court's new rule abandons the justifica-
145
tions underlying Chimel , It offers no guidance to the
police officer seeking to work out these answers for
himself."
It was not surprising, therefore, that the whole field of law
involved in these cases was again before the United States
Supreme Court less than a year later in United States v. Ross ,
U.S. , 102 S. Ct. 2157 1982). In that case, which
involved the search of a brown paper bag containing heroin found
in a car's truck, the Court repudiated the holding in Robbins and
held that the "automobile exception" to the Fourth Amendment
allows police" who have lawfully stopped a vehicle which they
reasonably believe to contain contraband to conduct a warrantless
search of any part of it, including all containers and packages,
in which the contraband may be concealed.
Thus, the rule of law with respect to container searches in
automobiles has apparently been finally made clear. Meanwhile,
however, the defendant in Robbins who possessed thirty pounds of
marihuana, went free because the police at the time of the search
did not apply the law as it would be applied at the moment the
Supreme Court considered the Robbins case. It is probably a
small consolation for the police in that situation that their
view of the law was ultimately borne out in a subsequent case.
To say that the suppression of reliable, trustworthy, evidence in
such a case helps to prevent police "misconduct" is absurd.
The consequence of applying the exclusionary rule in the
cases discussed above is two-fold. First, the purpose of the
exclusionary rule is not served when the officers believe, in
good faith, that they are performing a lawful search. When law
enforcement officers obtain a warrant in good faith or when they
make a reasonable, good faith attempt to predict the decisions
that future courts will make, there exists no logical basis for
excluding the evidence they have gathered. Applying the rule in
these cases fails to further in any degree the rule's deterrent
purpose, since conduct reasonably engaged in, in good faitff, is
by definition not susceptible to being deterred by the imposition
of after-the-fact evidentiary sanctions.
146
(Second , application of the exclusionary rule when the police
have acted reasonably and in good faith results in attaching a
false label to proper police conduct. This adversely affects the
criminal justice system by fostering the public perception that
police are engaged in lawless, improper conduct when that is
simply not the case. The Supreme Court recognized these effects
in Stone v. Powell, 428 U.S. 1(65 (1976), in which it stated:
The disparity in particular cases between the error
committed by the police officer and the windfall
afforded a guilty defendant by application of the rule
is contrary to the idea of proportionality that is
essential to the concept of justice. Thus, although
the rule is thought to deter unlawful police activity
in part through the nurturing of respect for Fourth
Amendment values, if applied indiscriminately it may
well have the opposite effect of generating disrespect
for the law and the administration of justice.
The unjustified acquittals' of guilty defendants due to
application of the exclusionary rule has resulted in a growing •
concern by our citizens that our system of justice is lacking in
sense and fairness. Unfortunately, it seems unlikely that any of
these conceptions by the public will change as long as the
exclusionary rule remains in its present form and courts continue
to expand its application to situations where law enforcement
conduct has been manifestly reasonable. '
Proposed Legislation Modification
The specific action we suggest in the area of legislative
limitation of the rule, as contrasted to legislative abolition of
the rule, is based upon a recent significant opinion on the rule
rendered by the Fifth Circuit. In. United States v. Williams, 622
F.2d 830 (5th Cir. 1980), the Fifth Circuit, after an exhaustive
analysis of the relevant Supreme Court decisions, announced a
construction of the exclusionary rule that would allow admission
at trial of evidence seized during a search undertaken in a
reasonable and good faith belief on the part of a federal officer
that his conduct was lawful. A majority of the 24 judges of that
court, sitting en banc , concurred in an opinion that concluded as
follows (Id. at 846-847):
Henceforth in this circuit, when evidence is sought to
be excluded because of police conduct leading to its
discovery, it will be open to the proponent of the
evidence to urge that the conduct in question, if
mistaken or unauthorized, was yet taken in a reason-
. able, good-faith belief that it was proper. If the
147
court so finds it shall not apply the exclusionary rule
to the evidence.
The reasonable good faith rule announced by the Fifth
Circuit is the same rule urged by the Attorney General's Task
Force on Violent Crime. If implemented, we believe that this
restatement of the exclusionary rule would go a long way towards
insuring that the rule would be applied only in those situations
in which police misconduct logically can be deterred. Law
enforcement officers will no longer be penalized for their
reasonable, good faith efforts to execute the law. On the other
hand, courts would continue to exclude evidence obtained as a
result of searches or seizures which were performed in an
unreasonable manner or in bad faith, such as by deliberately
misrepresenting the facts used to obtain a warrant. Thus, the
penalty of exclusion will only be imposed when officers engage in
the type of conduct the exclusionary rule was designed to deter
— clear, unreasonable violations of our very important Fourth
Amendment rights.
It should be noted that the reasonable, good faith rule
requires more than an assessment of an officer's subjective state
of mind and will not, as is sometimes argued, place a premium on
police ignorance. In fact, the rule requires a showing that the
officer's good faith belief is grounded in an objective reason-
ableness. As the Williams court explained, the officer's belief
in the lawfulness of his action must be "based upon articulable
premises sufficient to cause a reasonable and reasonably trained
officer to believe he was acting lawfully." Accordingly, an
arrest or search that clearly violated the Fourth Amendment under
prior court decisions would not be excepted from the rule simply
because a police officer was unaware of the pertinent case law.
Thus, there would remain a strong incentive for law enforcement
officers to keep abreast of the latest developments in the law.
Constitutionality of the Proposed Modification
In conclusion, I would like to emphasize that the Department
of Justice is satisfied that our proposal is fully constitutional.
It is very similar to that already adopted in the Vlilliams case,
an extensive decision based on a thorough analysis of relevant
148
Supreme Court cases. Moreover, the dissent of the chief Justice
in Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388, 422-42i» (1971) invited Congressional
•OtlOB in this area. Since our proposal Is grouhded primarily on
the osces decided over the past ten years in which the Supreme
Court has emphasized the deterrence of unlawful conduct as the
sole or primary purpose of the rule, the Department has concluded
that such a modification would be held to be constitutionally
permissible. In addition, as mentioned above, our proposal Is
:' fully consistent with the principle of judicial integrity as well
■^A ma Mlth that of deterrence.
TITLE IV - FORFEITURE
Title IV of our bill is designed to enhance the use of
forfeiture, and la particular the sanction of criminal forfeit-
ure, as a law enforcement tool in combatting two of the most
serious crime problems facing the country: racketeering and drug
trafficking.
Tl)ere are presently two types of forfeiture statutes in
federal law. The first provides for civil forfeiture, a civil in
rem action, brought directly against property which is unlawful
or contraband, or which has been used for an unlawful purpose.
The majority of drug-related property. Including drug profits,
now must be forfeited civilly under 21 U.S.C. 881. While this
civil forfeiture statute has been an extremely useful tool in the
effort to combat drug trafficking, a significant drawback is the
requirement that a separate civil suit be filed in each district
in which forfeitable property is located. Also, the overcrowding
of civil dockets may require a substantial delay before these
civil forfeiture cases may be heard. Where the property to be
forfeited is the property of a person charged with a drug
violation, and that violation constitutes the basis for forfeit-
ure, a more efficient way of achieving forfeiture would be to
employ the second type of forCeiture statute, a criminal forfeit-
ure statute, which permits the consolidation of forfeiture issues
with the trial of the criminal offense.
149
Criminal forfeiture is relatively new to federal law,
although it has its origins in ancient English common law. It is
an iji personam proceeding against a defendant in a criminal case,
and is Imposed as a sanction against the defendant upon his
conviction. Criminal forfeiture is now available under only two
statutes: the Racketeer Influenced and Corrupt Organization or
"RICO" statuteV and the Continuing Criminal Enterprise or "CCE"
statute, 2/ a specialized drug offense which punishes those who
conduct drug trafficking organizations.
In the last decade, there has been an increasing awareness
of the extremely lucrative nature of drug trafficking and of the
illicit economy which it generates and through which it is
sustained, and thus, of the importance of effective tools for
attacking the economic aspects of such crime. A similar
awareness with respect to racketeering led to the enactment of
the RICO and CCE statutes more than ten years ago.
Both civil and criminal forfeiture hold significant promise
as important law enforcement tools in separating racketeers and
drug traffickers from their ill-gotten profits and the economic
power bases through which they operate. However, because of
limitations of and ambiguities in present forfeiture statutes,
the law enforcement potential of forfeiture in these areas has
not been fully realized. Title IV is designed to address these
problems, and is based with minor modifications on the forfeiture
provisions of title VI of the Senate-passed comprehensive drug
enforcement and violent crime bill of the last Congress,
S. 2572.3/ Substantially similar forfeiture legislation, S. 9'*8,
is now also before the Judiciary Committee.
The forfeiture provisions of our bill are divided into four
parts. The first, Part A, amends the criminal forfeiture
provisions of the RICO statute. One of the most important of the
RICO amendments would make the proceeds of racketeering activity
1/ 18 U.S.C. I960 et seq.
2/ 21 U.S.C. 848.
2/ This title of S. 2572 was, with certain amendments, based on
S. 2320, the forfeiture bill prepared by the Administration which
was approved by the Senate Judiciary Committee. S. Rept. No.
97-520, 97th Cong., 1st Sess. (1982).
150
specifically subject to an order of criminal forfeiture. While
it has been our position .that the scope of the current criminal
forfeiture language of the RICO statute encompasses this type of
property, certain appellate courts have not agreed, and this
issue is currently pending review by the Supreme Court. H./ In our
view, the utility of criminal forfeiture as a means of combatting
racketeering would be seriously limited if we were unable to
reach racketeering profits, and this amendment is therefore
essential to the RICO forfeiture scheme.
Clarifying the scope of property subject to forfeiture goes
only part of the way towards making the RICO forfeiture statute
more effective. We must also address the serious problem of
defendants defeating criminal forfeiture actions by removing,
concealing, or transferring forfeitable assets prior to convic-
tion. To counteract this problem, our RICO forfeiture amendments
strengthen the government's ability to obtain restraining or
protective orders to preserve forfeitable assets until trial and
would permit, under limited circumstances, the issuance of such
orders prior to indictment — an authority lacking under current
law. They also provide clear authority to void transfers a
defendant has undertaken in an attempt to defeat the govern-
ment's opportunity for forfeiture. Finally, where a defendant
has succeeded in removing his forfeitable assets from the reach
of the government, our bill would permit the court to order him
to forfeit substitute assets of equal value. We believe these
amendments are essential to an effective criminal forfeiture
statute. In criminal forfeiture, custody of forfeitable assets
remains with the defendant until conviction. Therefore, we must
have strong authority to prevent improper pre-conviction
transfers and to negate the benefits of such transfers when they
occur.
Part B of Title IV of the Administration's bill makes
several amendments to the Comprehensive Drug Abuse Prevention and
i*/ Russello V. United States (No. 82-J*72, cert, granted
Jan. 10, \962T'.
151
Control Act of 1970.5/ The most significant of these aM«ndB«nta
is the creation of a new criminal forfeiture statute that would
be applicable in all major drug prosecutions. Presently, the
sole drug offense to which criminal forfeiture applies is the
specialized Continuing Criminal Enterprise statute. £/ The scope
of property subject to criminal forfeiture under this new
provision would be essentially the same as that now subject to
civil forfeiture under the drug laws, namely, the proceeds of
drug offenses and property used in the commission of these
crimes. While there will continue to be cases where the use of
civil forfeiture will be either necessary or preferable, the
option of proceeding with a criminal forfeiture action should
allow greater efficiency in our drug forfeiture efforts by
reducing the need to pursue parallel civil forfeiture actions and
criminal prosecutions. The new criminal forfeiture statute for
drug-related assets tracks the RICO criminal forfeiture provi-
sions as amended in Part A of this Title. Thus, this new statute
incorporates impor;tant safeguards to protect against the greatest
flaw of current criminal forfeiture statutes, the opportunities
they present for defendants to utterly avoid the forfeiture
sanction by removing, concealing, or transferring their assets
before conviction can be obtained.
Another important aspect of Part B of our forfeiture
proposal is an amendment of the current civil forfeiture provi-
sions of the drug laws to permit the forfeiture of real property
used in the commission of drug felonies. This new authority
would permit the forfeiture of buildings used as "stash" houses
and illicit drug laboratories, and would also permit the forfeit-
ure of land used to cultivate drugs, a problem, particularly with
respect to the domestic cultivation of marihuana, that is of
growing concern to federal drug enforcement authorities. The.
civil forfeiture provisions of our drug laws are also amended in
Part B to include a provision for the stay of civil forfeiture
proceedings pending the disposition of a related criminal case.
Without such stays, the civil forfeiture proceeding can be
5/ 21 U.S.C. 601 et seq.
^/ 21 U.S.C. 848.
152
manipulated to obtain premature, and otherwise impermissibly
broad, discovery of matters that will arise in the government's
prosecution of an associated criminal offense.
Through the amendments set out in Part B of our forfeiture
proposal, we should be able to improve significantly our efforts
to attack the crucial economic aspects of the lucrative illicit
drug trade. Increased efforts in this area have obvious bene-
fits. However, we also must recognize that pursuing forfeiture
can prove to be an expensive proposition for the United States.
Indeed, in certain cases, the expenses associated with forfeiture
can exceed the amount that we ultimately realize upon the sale of
forfeited assets. In our view, it would be particularly appro-
priate to make the net profits from drug forfeitures available to
defray the costs incurred by the government in obtaining forfeit-
ures. Therefore, Part C of this title establishes a trial
four-year program under which amounts realized by the United
Stated from the forfeiture of drug profits and other drug-related
assets would be placed in a special fund from which the Congress
could appropriate moneys specifically for the purpose of paying
expenses that arise in civil and criminal forfeiture actions
under the drug laws. Among the purposes for which these funds
could ,be used is the payment of rewards for information or
assistance leading to a forfeiture. The availability of sub-
stantial rewards is essential if we are to obtain significant
forfeiture in the secretive and violent setting of drug traf-
ficking.
The final group of forfeiture amendments, which make up Part
D of Title IV, are amendments to the Tariff Act of 1930. These
provisions govern the seizure and forfeiture of property under
the customs laws, and are also applicable to seizures and
forfeitures of drug-related property under 21 U.S.C. 881. The
most important of these amendments would expand the use of
efficient administrative forfeiture proceedings in cases in which
no party comes forward to contest a civil forfeiture action.
Under current law, administrative forfeiture is available only in
those uncontested esses which involve property valued at $10,000
153
or less; all other cases must be the subject of judicial proceed-
ings. Because of this current low valuation ceiling on adminis-
trative forfeitures, judicial proceedings are required in a
significant number of forfeiture cases, even though there is no
party in opposition to the forfeiture. In these cases, the
overcrowding of court dockets often means a delay of more than
one year before the case may be heard, and during this period of
delay the property is subject to deterioration and the costs to
the government in maintaining and safeguarding the property
escalate. To address these problems, the Tariff Act is amended
in our bill to permit the use of more efficient administrative
forfeiture proceedings in uncontested cases involving any
conveyances used to transport illicit drugs and any other
property of a value of up to $100,000.
Also included in these Tariff Act amendments are two changes
in current law that will enhance cooperation between federal law
enforcement agencies and their State and local counterparts.
First, new authority is created whereby property forfeited by the
United States may be directly transferred to State or local
agencies which have assisted in developing the case that led to
the forfeiture. Second, the authority for discontinuance of
federal forfeitures in favor of State or local forfeiture
proceedings is clarified.
Finally, the Tariff Act amendments provide for a trial
funding mechanism for meeting the expenses of customs forfeitures
which parallels that established for drug-related forfeitures
under Part C of this Title. In essence, this provision places
the moneys realized from forfeitures under the customs laws in a
special fund from which appropriations may be made to cover the
costs associated with the seizure, forfeiture, and ultimate
disposition of assets. •
For the purposes of our testimony today, we have only
touched on the more important of the forfeiture amendments of
Title IV of the Administration's bill. However, in this title of
the bill, we have attempted to achieve a comprehensive improve-
ment of our forfeiture laws. Thus, our proposal not only
25-694 O - 84 - 11
154
corrects the most disturbing limitations of current law, but
also addresses numerous ambiguities and provides needed guidance
in procedural matters, guidance which is particularly lacking in
current criminal forfeiture statutes. Forfeiture can be a vital
element in our efforts to combat racketeering and drug traffick-
ing. But to achieve this goal, our forfeiture laws must be
strengthened as provided in Title IV of our bill.
TITLE V - The Insanity Defense
Title V of the bill deals with the insanity defense and with
related procedural matters that apply in the federal criminal
justice system. The subject is an important one. Although the
insanity defense is raised in comparatively few federal oases and
is successful in even fewer, the defense raises fundamental
Issues of criminal responsibility which the Congress should
address. Moreover, the insanity defense is often asserted in
cases of considerable notoriety which influence, far beyond their
numbers, the public's perception of the fairness and efficiency
of the criminal justice process.
It requires little reflection to understand why the public
is so concerned about the defense. When it is raised following a
crime involving a prominent defendant or victim, in which there
is absolutely no question whether the defendant committed the
acts constituting the offense — indeed we may well have been
able to see him do it several times over on television news
reports — and yet the highly publicized trial that follows
focuses not on those acts so much as on the defendant's mental
and emotional history, most lawyers and laymen alike would agree •
that the focus of the judicial process has become grossly
distorted.
In spite of these problems with the defense and its impor-
tance, it is ironic, as the Attorney General pointed out last
July when he testified before the Committee, that neither the -
155
Congress nor the Supreme Court has yet played a major role in its
development. Its evolution in England and in this country over
several centuries has been haphazard and confusing. As the
Conimittee knows from its work over the past decade or more on the
criminal code revision bills, Congress has never enacted legis-
lation defining the insanity defense. Likewise, the Supreme
Court has generally left development of the defense to the
various federal courts of appeals. As a result, the federal
circuits do not even at present apply a wholly uniform standard.
^ In recent years, however, all of the federal circuits have
adopted, with some variations, the formulation proposed by the
American Law Institute's Model Penal Code which provides that a
"person is not responsible for criminal conduct if at the time of
such conduct as a result of mental disease or defect he lacks
substantial capacity to appreciate the [criminality] [wrongful-
ness] of his conduct or to conform to the requirements of the
law."
As a result, in a trial involving the insanity defense, the
defendant's commission of the acts in question is commonly
conceded or at least not seriously contested. Instead the trial
centers around t^e issue of insanity and the key participants are
highly paid psychiatrists who offer conflicting opinions on the
defendant's sanity. Unfortunately for the Jury and for society,
the terms used in any statement of the defense — for example the
term "paranoid schizophrenia" -- are often not defined and the
experts themselves disagree on their meaning. In addition, the
experts often do not agree on the extent to which behavior
patterns or mental disorders that have been labeled "schizo-
phrenia," "inadequate personality," and "abnormal personality"
actually cause or impel a person to act in a certain way. For
example, a December, 1982, statement by the American Psychiatric
Association on the insanity defense noted that "[t]he line
between an irresistible impulse, and an impulse not resisted is
probably no sharper than that between twilight and dusk."
Since the experts themselves are in disagreement about both
the meaning of the terms used to define the defendant's mental
state and the effect of a particular state on the defendant's
156
•Otions — but still freely allowed to state their opinion to the
Jury on the ultimate question of the defendant's sanity — it is
amall wonder that trials involving an insanity defense are
arduous, expensive, and worst of all, thoroughly confusing to the
Jury. Indeed the disagreement of the experts is so basic that it
-■akes rational deliberation by the Jury virtually impossible.
Thus, it is not surprising that the Jury's decision can be
strongly influenced by the procedural question of which side must
carry the burden of proof on the question of insanity. In this
regard, we can vividly recall that several of the Jurors in the
Hinckley case publicly stated, afterwards that they were strongly
influenced by the fact that the government had the burden of
proof.
Thus, Title V has been drafted to reflect three changes in
the insanity defense in the federal system that would restrain it
within fair and reasonable boundaries and make .it more comprehen-
sible to the Jury. First, the defense would be limited to those
cases in which the defendant, as a result of mental disease or
defect, was unable to appreciate the nature and quality or
wrongfulness of his acts, and it is made explicit that mental
disease or defect does not otherwise constitute a defense.
Second, opinion evidence on the question whether the defendant
had the mental state or condition to constitute either an element
of the crime or a defense is prohibited; and third, the defendant
would be required to carry the burden of proof of his insanity by
clear and convincing evidence.
Limiting the defense to those cases in which a mental disease
or defect renders the defendant unable to appreciate the nature
and quality or wrongfulness of his acts would abolish the
volitional portion of the two-pronged ALI-Model Penal Code test
for insanity quoted earlier. We have concluded that elimination
of the volitional portion of the test is appropriate since mental
health professionals themselves have come to recognize that it is
very difficult if not impossible to determine whether a particu-
lar individual lacked the ability to conform his conduct to the
157
requirements of the law becfause he was suffering from a mental
disease or defect. There is, in short, a much stronger agreement
among psychiatrists about their ability to ascertain whether as a
result of mental illness a defendant had an understanding of his
acts than about whether he had the capacity to heed • the law's
strictures .
Opinion evidence on the ultimate question of whether the
defendant haa the mental state or condition to constitute an
element of the offense or a defense would be proscribed in our
proposal by an amendment to Rule 704 of the Federal Rules of
Evidence. We believe that such a provision is critical in
overcoming the abuses of the insanity defense as it is presently
employed in the federal system. In many insanity defense trials,
prosecution and defense psychiatrists agree on the nature and
extent of the defendant's mental disorder. What they disagree
about is the probable relationship between his disorder and his
ability to control his conduct or even to appreciate its wrong-
fulness. In our view, expert opinion testimony on whether the
defendant could appreciate the nature and quality or wrongfulness
of his acts and on his motive, intent, or other mental state
should be disallowed. As recognized by many psychiatrists
themselves, there is no basis for believing that psychiatry is
competent to determine such matters as they existed on a previous
occasion as opposed to simply describing the person's mental
disorder or defect. We believe that the question of the connec-
tion between any mental disease or defect and the defendant's
inability to understand his acts is the type of fact question
that ought to be left to the trier of fact unhindered by "expert"
opinion in an area where no consensus of such opinion exists.
Our proposal also shifts to the defendant the burden of
proving his insanity by clear and convincing evidence. Such a
shift does not present a constitutional issue. The present rule
followed in the federal courts which places the burden of proving
sanity on the prosecution stems from the Nineteenth Century case
of Davis V. United States, 160 U.S. ijeg. The rule has been held
to establish "no constitutional doctrine, but only the rule to be
158
followed in federal courts." Leland v. Oregon. S'^S U.S. 790, 797
(1952). Leland, which sustained the constitutionality of an
Oregon statute shifting the burden of persuasion on insanity to
the defendant beyond a reasonable doubt, was reaffirmed by the
Supreme Court in Patterson v. New York, ^32 U.S. 197 (1977), a-
case dealing with the constitutionality generally of the concept
of affirmative defenses in which the burden of persuasion is
placed on the defendant. Although Patterson did not deal with
the insanity defense, it not*d specifically that under Leland
"once the facts constituting a crime are established beyond a
reasonable doubt, based on all the evidence, including evidence
of the defendant's mental state, the State may refuse to sustain
the affirmative defense of insanity unless demonstrated by the
defendant by a preponderance of the evidence." Patterson, p.
206. As recently stated by the Sixth Circuit: "Patterson makes
it clear that so long as a jury is instructed that the state has
the burden of proving every element of the crime beyond a
reasonable doubt, there is no due process violation. The state
may properly place the burden of proving affirmative defenses
such as ... insanity upon the defendant." Krzeminski v. Perini,
61U F.2d 121, 123 (6th Cir. I98O). A little over half of the
states now place the burden of persuasion on the defendant.
Our proposal would require the defendant to prove his
insanity by clear and convincing evidence, a higher standard of
proof than a mere preponderance of the evidence. In our view, it
is important to assure that only those defendants who clearly
satisfy the elements of an insanity defense are exonerated from
what otherwise would be culpable criminal behavior. It is
therefore appropriate to require the defendant to demonstrate his
insanity by something more than a bare preponderance of the
evidence.
Moreover, what our proposal does not do is worthy of special
emphasis. While Title V would shift the burden of proof on the
insanity defense to the defendant, it does not relieve the
government of the burden of proving each and every element of th'
offense, including any statutorily prescribed mental element sue
as willfulness or malice, beyond a reasonable doubt.
159
In sum, we believe that our proposal for a legislative
limitation of the insanity defense is reasonable, workable, and
fair. It continues the privilege of the defendant to raise the
defense of insanity, while restoring the right of society,
through the Jury, to evaluate all the evidence and determine
whether any mental disease or defect that the defendant is able
to show was the cause of the crime. In short, the jury will
determine whether the defendant committed the crime because he
could not understand what he was doing or could not appreciate
the wrongfulness of his conduct due to a mental disease or
defect, or whether he had such an understanding or appreciation
but decided to do it anyway.
Beyond the reforms of the insanity defense itself which we
have just described, Title V contains a number of provisions for
the commitment to a mental hospital for treatment of persons at
various stages in the criminal justice process who are so
disturbed as to present a danger to the community. These
provisions are familar to the Committee since they are virtually
identical to those contained in recent criminal code revision
bills such as S. 1630 in the last Congress and generally arouse
little or no controversy. Of paramount importance is the
establishment for the first time of a civil commitment procedure
for defendants who, for one reason or another, are charged with a
crime but not convicted. At present, outside the District of
Columbia, there is no federal statute authorizing or compelling
the conunitment of an acquitted but presently dangerous and insane
individual. When faced with such a situation, federal prosecu-
tors today can do no more than call the matter to the attention
of State or local authorities and urge them to institute commit-
ment proceedings. Of course there is no requirement that this
will occur, and the lack of such a commitment procedure in the
federal system creates the very real potential that the public
will not be adequately protected from a dangerously insane
160
62 -
defendant who is acquitted at trial. In short, federal prosecu-
tors must at present hope that the state officials will come to
their rescue and take up what began as a federal responsibility.
Accordingly, we strongly urge the Committee to include all
of these comprehensive procedural reforms as an integral part of
the reform of the insanity defense.
TITLE VI — Reform of Federal Intervention in
State Proceedings
Title VI of the bill responds to the serious problem of
habeas corpus abuse. The overly broad availability of collateral
proceedings in the federal courts has been a growing source of
concern in recent years to legal writers, state judges and
attorneys general, and federal judges. Indeed, a majority of the
Justices of the Supreme Court have strongly criticized the
current operation of federal habeas corpus and have called for
basic limitations on its scope and availability. \_/ The
generally recognized shortcomings of the current system include
the affront to the state courts involved in unnecessary
re-adjudication of their decisions by the lower federal courts;
the impossibility of ever conclusively ending the litigation of a
criminal case on account of the open-ended availeJjility of
federal habeas corpus; the waste of federal and state resources
involved in litigating the frivolous and redundant petitions of
state and federal prisoners; and the virtual nullification of
1/ See Rose v. Lundy, 455 U.S. 509, 546-47 (1982) (Stevens, J.,
dissenting) ; Schneckloth v. Bustamonte, 412 U.S. 218, 250
(1973) (concurring opinion ol Powell, J., joined by
Burger, C.J., and Rehnquist, J.); Burger, 1981 Year-End
Report on the Judiciary 21; O'Connor, Trends in the
Relationship Between the Federal and State Courts from the
Perspective of a State Court Judge" 22 William & Mary L.
Rev. 801, 814-15 (1981) ; Justice Lewis Powell, Address
Before the A.B.A. Division of Judicial Administration,
Aug. 9, 1982. See also Schnecltloth v. Bustamonte, 412 U.S.
218, 249 (1973) (Blac)tmun, J., concurring); Engle v. Isaac,
456 U.S. 107, 126-28 (1982).
161
state capital punishment laws that has resulted from delayed and
repetitive habeas corpus applications in capital cases.
Title VI incorporates a variety of reforms responding
to these abuses. The proposals in the Title originated as
S. 2216 of the 97th Congress, which was the subject of hearings
before the Senate Judiciary Committee in April of 1982. The
proposals were later re-introduced in the 97th Congress by
Senator Thurmond as S. 2838 with certain clarifying amendments
resulting from the hearings. The proposals of Title VI of this
bill are the same as those of S. 2838. The intended
interpretation and justification of the proposed reforms have
been fully set out in prior statements of the Administration and
the bills' sponsors, y In brief, the major reforms of Title VI
are as follows:
First, Title VI would establish a time limit on habeas
corpus applications. The need for such a reform was cogently
expressed in a recent statement of Justice Powell:
Another cause of overload of the federal system is 28
U.S.C. §2254, conferring federal habeas corpus
jurisdiction to review state court criminal
convictions. There is no statute of limitations, and
no finality of federal review of state convictions.
Thus, repetitive recourse is commonplace. I know of no
other system of justice structured in a way that
assures no end to the litigation of a criminal
conviction. Our practice in this respect is viewed
with disbelief by lawyers and judges in other
countries. Nor does the Constitution require this sort
of redundancy, "ij
Title VI would correct this situation by enacting a
one-year time limit on habeas corpus applications, normally
y See 128 Cong. Rec. S11851-59 (daily ed. Sept. 21, 1982)
(statement of Senator Thurmond concerning S. 2838); 129
Cong. Rec. S3147-48 (daily ed. March 16, 1983)
(section-by-section analysis of Title VI of S.829); The
Habeas Corpus Reform Act of 1982: Hearing on S.2216 Before
the Senate Committee on the Judiciary, 97th Cong., 2d Sess.
16-107 (1982) (Administration statements and testimony
concerning S.2216). See also William French Smith,
"Proposals for Habeas Corpus Reform," in P. McGuigan &
R. Rader, eds.. Criminal Justice Reform: A Blueprint (Free
Congress Research and Education Foundation 1983) .
y Justice Lewis Powell, Address Before the A.B.A. Division of
Judicial Administration, Aug. 9, 1982.
162
running from exhaustion of state remedies. The proposed
limitation rule may be compared to various other limits presently
imposed on the review or re-opening of criminal judgments in the
federal courts, such as the normal 90 day limit on state
prisoners' applications for direct review in the Supreme Court.
It would provide ample time for state defendants to seek federal
. review of their convictions following the conclusion of state
proceedings. It would, however, create a means for control of
the current abuses of repetitive filing and the filing of
petitions years or even decades after the normal termination of a
criminal case.
A second reform of Title VI addresses the problem of
claims that were not properly raised in state proceedings. It is
particularly disruptive of orderly procedures in criminal
adjudication if a prisoner who failed to take advantage of a fair
opportunity to raise a claim in state proceedings is later
allowed to raise it in a habeas corpus proceeding, with the
potential for unsettling a criminal conviction long after it
should be regarded as final. Title VI would establish a general
rule barring the assertion in federal habeas corpus proceedings
of a claim that was not properly raised before the state courts/
so long as the state provided an opportunity to raise the claim
that satisfied the requirements of federal law.
The main practical import of the proposed rule is for
cases in which attorney error or misjudgment is advanced as the
reason why a claim was not raised in the state courts, resulting
in its forfeiture under state rules of procedure. A procedural
default of this sort would be excused in a subsequent habeas
corpus proceeding if the attorney's actions amounted to
constitutionally ineffective assistance of counsel, since in such
a case the default would be the result of the state's failure, in
violation of the Sixth Amendment to the Constitution, to afford
163
the defendant effective assistance of counsel. £/ But minor or
technical errors or misjudgments — which even the most able
attorney will sometimes engage in, given the pressures and
complexity of criminal adjudication — would not excuse a
procedural default. As Justice O'Connor stated for the Supreme
Court in Engle v. Isaac:
We have long recognized . . . that the Constitution
guarantees criminal defendants only a fair trial and a
competent attorney. It does not insure that defense
counsel will recognize and raise every conceivable
constitutional claim. 5^/
The approach of Title VI is consistent with the
clearest interpretations of the current rules by the federal
courts of appeals. §_/ The establishment of this interpretation
on a uniform basis will avoid many years of additional litigation
that would be required to resolve the existing uncertainties in
this area through caselaw development.
A third major reform of Title VI is affording finality
to full and fair state adjudications of a petitioner's claims.
Justice O'Connor has observed:
If our nation's bifurcated judicial system is to be
retained, as I am sure it will be, it is clear that we
should strive to make both the federal and the state
systems strong, independent, and viable. State courts
will undoubtedly continue in the future to litigate
federal constitutional questions. State judges in
assuming office take an oath -to support the federal as
well as the state constitution. State judges do in
fact rise to the occasion when given the responsibility
and opportunity to do so. It is a step in the right
direction to defer to the state courts and give finality
to their judgments on federal constitutional questions
where a full and fair adjudication has been given in
the state court. TJ
4/ See Cuyler v. Sullivan, 446 U.S. 335, 344 (1980) ("The right
to counsel prevents the state from conducting trials at
which persons who face incarceration must defend themselvss
without adequate legal assistance.").
5/ 456 U.S. 107, 134 (1982).
6/ See Indivi(^lio v. United States, 612 F.2d 624, 631 (2d Cir.
197971 "without some showing that counsel's mistakes were
so egregious as to amount to a Sixth Amendment violation, a
mere allegation of error by counsel is insufficient to
establish 'cause' to excuse a procedural default."
2/ O'Connor, Trends in the Relationship Between the Federal and
^tate Courts from the Perspective of a State Court Judge, TI
William and Mary Law Review 801, 814-15 (1981).
164
To be full and fair in the intended sense the state
adjudication must satisfy a nuinber of specific requirements which
are fully set out in the legislative history of the proposal. 8^/
The state court determination must be reasoneible, and must be
arrived at by procedures consistent with appliczible federal law.
This standard would preserve federal re-adjudication in cases
presenting demonstrated deficiencies in the state process. It
%rould, however, avoid the excesses of the current standard of
review under which an independent determination of all claims is
required even where there is nothing to suggest that their
consideration by the state courts was in any way the deficient.
The proposed standard is similar to that applied by the
Supreme Court in habeas corpus proceedings prior to the
unexplained substitution of the current rules of ■ mandatory
re-adjudication in Brown v. Allen. £/ It may also be compared to
standards of review currently employed in various other areas of
federal law. One exeimple is the "good faith" standard applicable
to judicial review of state executive action in S 1983 suits,
under which the disposition similarly depiends on the
reasonableness of the state official's views concerning the
requirements of federal law. The effect of the new standard of
review proposed in Title VI should be a relatively quick and easy
disposition in federal hzibeas corpus proceedings of most claims
that have previously been determined by the state courts.
8/ See 128 Cong. Rec. S11852, S11855-57 (daily ed. Sept. 21,
TM2) ; The Habeas Corpus Reform Act of 1982: Hearing on
S. 2216 Before the Senate Committee on the Judiciary, 97th
Cong., 2d Sess. 16-17, 41-42, 89-101 (1982); 129 Cong. Rec.
S3147-48 (March 16, 1983).
£/ 344 U.S. 443 (1953). See Ex Parte Hawk, 321 U.S. 114, 118
(1944): "Where the state courts have considered and
adjudicated the merits of ... (a petitioner's] . . .
contentions ... a federal court will not ordinarily
reexzimine upon writ of habeas corpus the questions thus
adjudicated .... But where resort to state court
remedies has failed to afford a full and fair adjudication
of the federal contentions raised, either because the state
affords no remedy ... or because in the particular case
the remedy afforded by state law proves in practice
unavailable or seriously inadequate ... a federal court
should entertain his petition for. habeas corpus, else he
would be remediless."
165
Title VI of the bill would also maintain the general
conformity of the standards for collateral proceedings involving
state prisoners and federal prisoners by creating a time limit
for federal prisoners' collateral attacks and clarifying the
rules governing excuse of procedural defaults in such
proceedings. The collateral attacks of federal prisoners on
their convictions present many of the same problems and involve
many of the same abuses as habeas corpus applications by state
prisoners. Imposing reasonable constraints on such attacks is
accordingly an equally appropriate reform. As Justice O'Connor
observed for the Supreme Court in United States v. Frady:
[T]he Federal Government, no less than the States, has
an interest in the finality of its criminal judgments.
In addition, a federal prisoner . . . unlike his state
counterparts, has already had an opportunity to present
his federal claims in federal trial and appellate
forums .... lw]e see no basis for affording federal
prisoners a preferred status when they seek
post-conviction relief. 10/
Finally, Title VI would institute reforms recommended
by Judge Henry Friendly 1_1_/ and Professor David Shapiro 1_2/ in
the procedure on appeal in collateral proceedings and the
operation of the exhaustion requirement. These reforms will
improve the efficiency of habeas corpus proceedings and reduce
the litigating burdens presently associated with them.
10/ 456 U.S. 152, 166 (1982). .
U^/ See Friendly, Is Innocence Irrelevant? Collateral Attack on
Criminal Judgments, 38 U. Chi. L. Rev. 142. 144 n.9 (1970)
(access to appeal in collateral proceedings) .
_12/ Shapiro, Federal Habeas Corpus: A Study in Massachusetts,
87 Harv. L. Rev. 321, 358-59 (1$73) (exhaustion of state
remedies should not be prerequisite to denial of claims on
the merits) .
166
TITLE VII — Drug Enforcement Amendments
PART A - Drug Penalties
Title VII of the bill, which contains drug enforcement
amendments, is divided into two parts. Part A provides a more
rational penalty structure for the major drug trafficking
offenses punishable under the Comprehensive Drug Abuse Prevention
and Control Act of 1970 (21 U.S.C. 801 et seg.). Trafficking in
illicit drugs is one of the most serious crime problems facing
the country, yet the present penalties for major drug offenses
are often inconsistent or inadequate. This title primarily
focuses on three major problems with current drug penalties.
First, with the exception of offenses involving marihuana
(see 21 U.S.C. 6m(b)(5)), the severity of current drug penalties
is determined exclusively by, the nature of the controlled
substance involved. While it is appropriate that the relative
dangerousness of a particular drug should have a bearing on the
penalty for its importation or distribution, another important
factor is the amount of the drug involved. Without the inclusion
of this factor, penalties for trafficking in especially large
quantities of extremely dangerous drugs are often inadequate.
Thus, under current law the penalty for trafficking in 500 grams
of heroin is the same as that provided for an offense involving
10 grams. This title amends 21 U.S.C. 841 and 960 to prov.ide for
more severe penalties than are currently available for major
trafficking offenses.
The second problem addressed by this title is the current
fine levels for major drug offenses. Drug trafficking is enor-
mously profitable. Yet current fine levels are, in relation to
the illicit profits generated, woefully inadequate. It is not
uncommon for a major drug transaction to produce profits in the
hundreds of thousands of dollars. However, with the exception of
the most recently enacted penalty for distribution of large
amounts of marihuana (21 U.S.C. 8M1(b)(6)), the maximum fine that
may be imposed is $25,000. This title provides more realistic
fine levels that can serve as appropriate punishments for, and
deterrents to, these tremer;dously lucrative crimes.
167
A third problem addressed by this title is the diaparat*
sentencing for offenses involving Schedule I and II substances,
which depends on whether the controlled substance involved in the
offense is a narcotic or non-narcotic drug. Offenses involving
Schedule I and II narcotic drugs (opiates and cocaine) are
punishable by a maximum of 15 years' imprisonment and a $25|000
fine, but in the case of all other Schedule I and II substances,
the afimum penalty is only five years' imprisonment and a
$15,000 fine. The same penalty is applicable in the case of a
violation involving a Schedule III substance. This penalty
structure is at odds with the fact that non-narcotic Schedule I
and II controlled substances include such extremely dangerous
drugs as PCP, LSD, methamphetamines , and methaqualone , and
federal prosecutions involving these drugs typically involve huge
amounts of illicit income and sophisticated organizations. Title
VII would correct these penalty problems in the areas of both
drug trafficking and importation/exportation offenses.
PART E - Diversion Control Amendments
The Comprehensive Drug Abuse Prevention and Control Act of 1970 (CSA)
(P.L. 91-513) has been in effect for nearly twelve years, during which time
it has proven to be a relatively effective piece of legislation. Through
the enforcement of its provisions, the Drug Enforcement Administration has
actively pursued the immobilization of major drug traffickers and has
removed from the illicit market significant quantities of both illicit
and diverted licit controlled substances. However, over this period several
weaknesses have surfaced which adversely affect the Federal Government's
ability to deal effectively with the menace of drug abuse in the United States.
Some of these weaknesses have developed due to the changing character of the
i-Hicit drug trade since the CSA was enacted. Others are the result of
omissions or unclear language in the. legislation. The proposed Diversion
Control Amendments included in Title VII' of the Comprehensive Crime Control
Act of 1983 address the problem of diversion of legally produced controlled
substances into the illicit market. It also includes provisions to reduce
the regulatory burden on the controlled drug industry.
168
The problem of abuse of drugs diverted from legitimate channels is a major
one that is not generally well recognized. In its September 10, 1970 "Report
on the Comprehensive Drug Abuse Prevention and Control Act of 1970," the
Committee on Interstate and Foreign Commerce noted that, as of late 1969,
almost 50 percent of legitimately produced amphetamines and barbiturates were
being diverted into illicit channels. It was the intent of the CSA to provide
for a "closed" system of drug distribution for legitimate handlers of controlled
drugs in order to reduce this level of diversion.
Despite the provisions of the Act, it was reported in the 1978 GAO
Report entitled, "Retail Diversion of Legal Drugs--A Major Problem With No
Easy Solution," that diversion and abuse of legal drugs may be involved
in as many as 7 out of 10 drug-related injuries and deaths. During the
period 1980-1982, between 60-70 percent of all emergcTicy room controlled
substance mentions involved drugs that are legitimate in origin (source:
Drug Abuse Warning Network). A more direct measure of diversion is the ■
documented diversion by convicted violators. The first 21 practitioners
convicted under Operation Script, a pilot program directed against regis-
trant violators, were responsible for documented diversion of approximately
20.6 million dosage units of controlled substances. Operation Script was
the forerunner of DEA's ongoing Targeted Registrant Investigation Program (TRIP).
At least one of those convicted was responsible for diverting between 4 and 5
million dosage units a year. These convicted defendants constitute only a
portion of the defendants under Operation Script, who in turn make up only
a small portion of the total number of registrants involved in diversion.
In FY 1982, DEA Initiated 320 cases involving willful diversion by registrants.
An example of the success of these actions is the investigation of the so-
called "store clinics" operating in the Detroit area. We estimate that these
"clinics" distributed between 6 and 7 million dosage units of Preludin, Desoxyn,
Dilaudld, and Talwin, all highly abused drugs, over a two-year period. Twenty-
nine indictments were returned in this case on two physicians, seven pharmacists,
and six corporations for a variety of drug charges including illegal distribu-
tion, conspiracy and continuing criminal enterprise. Similar success has been
achieved in cases against the "stress clinics" which act as "prescription
mills" for'the diversion of methaqualone. Clearly, diversion by registrants
appears to be much greater than had previously been estiipated. These figures
169
involve only willful diversion and do not include theft, fraud, or misprescribing
which add to the problem.
The incentives for diverting legally produced controlled substances are
many and varied. Certainly, the enormous profits involved make trafficking
of diverted drugs most attractive. A single dosage unit of Dilaudid, a
synthetic narcotic which can be purchased by a pharmacy or doctor for
approximately 17«, can be sold on the streets for up to $60.00.
Contributing to the demand for and the price of diverted drugs is the
fact that heroin availability in many parts of the United States has been
reduced from 1971 levels and continues to remain at a considerable reduced
level. The demand for a wide variety of diverted drugs to supplement poor
quality or non-existent heroin continues to be a factor affecting the diversion
problem. However, it is clear that a large poly-drug abusing population
has developed and will continue to have a preference for multiple drug use
particularly among school age children. In some cases, legally produced
narcotics have replaced narcotics as the drug of choice.
The responsibility for enforcing the provisions of the Controlled Substances
Act, as they pertain to legally produced controlled substances, lies with
DEA's Office of Diversion Control. Created to deal specifically with this
problem, this office uses a wide range of tools to combat diversion. It
conducts periodic investigations of manufacturers and distributors; criminal
investigations of violative registrants; maintains the "closed system" through
the registration process; sets production limits on Schedule I and II substances;
places drugs in the appropriate schedule of the CSA; authorizes and monitors
imports and exports of controlled substances; participates in international
drug control bodies; and conducts a variety of other activities to control
diversion. The system of diversion controls in the United States is recognized
and admired worldwide.
Despite the successes of our diversion programs, a major problem with .
combating the diversion problem continues to be the source of the diversion.
Under the provisions of the Act, DEA has been successful in reducing diversion
at the manufacturer/distributor level to a relatively small portion of the
total drugs diverted each year. This success has been a direct result of the
authority to regulate this level of the "closed" distribution chain. Registra-
tion to manufacture and distribute controlled substances is issued only when
clearly consistent with public interest. Authority to enforce the Act through
25-694 0-84-12
170
administrative, civil, and criminal statutes is clear at this level, and
mechanisms exist to control diversion. This same level of authority does not
extend to the practitioner level. It is at the practitioner level that
80-90 percent of all diversion occurs. Registration of practitioners is
predicated on authorization of the state in which they practice. Grounds
for denial or revocation are extremely limited.
This difference in the level of authority between Federal and state
governments concerning registration requirements established their respective
roles in the area of drug diversion. Since the inception of the Act, the
Federal effort has been directed primarily at the upper level of the distribution
chain, the manufacturers and distributors. The states were left to monitor
and enforce compliance at the practitioner level. However, the level of
diversion at the practitioner level demonstrates that the states have
not been able to maintain effective controls against diversion. As
reported in the "Comprehensive Final Report on State Regulatory Agencies
and Professional Associations," legislative deficiencies and organizational
and resource problems, have all rendered many states ineffectual. As a
result, the Federal Government has had to increase its support of the states
in combating practitioner diversion. This support has taken many forms and
includes both enforcement and non-enforcement efforts and a provision to
expand this effort is included in the proposed amendments.
A major part of the Diversion Control Amendments addresses the issue of
diversion at the -practitioner level where it is estimated that 80-90 percent
of diversion from legitimate channels occurs. However, we have not strengthened
our ability to combat the diversion problem by placing undue burdens on the
drug industry. Whenever possible, these amendments move to reduce the burden
on the vast majority of registrants who abide by both the letter and the spirit
of the law. Some of the proposed amendments were developed as the result of
comments received from industry and the public and through the regulatory review
process.
The major areas that the Diversion Control Amendments address are the
following.
1 . Expansion of State Assistance Efforts
In the GAO Report, "Retail Diversion of Legal Drugs," it was recommended
that Congress enhance the Drug Enforcement Administration's role- by authorizing
it to either:
171
— exercise direct regulatory authority over retail
level practitioners, or
implement grant programs for assisting states in
controlling diversion.
Due to the complexity of the problem, the varied degree of state level
capabilities and the need for prompt and effective action at the practitioner
level, a combination of both avenues is most appropriate. The Federal
effort will continue at the highest level of practitioner diversion, where
highly complex, multi-state operations clearly warrant Federal action.
However, it is clear that the bulk of the enforcement responsibility will
be at the state and local level where these registrant divertors have a
significant impact on the abuse of drugs in their locale. To increase the
ability of the state and local authorities to deal with this currently
overwhelming problem, we have proposed a new state assistance effort aimed
against the diversion of legally produced drugs.
We have proposed an amendment to Section 503 to provide new grant authority
for the expansion of assistance to states for curtailing practitioner diversion.
The assistance would be aimed at those areas which have been identified by
DEA's "Comprehensive Final Report on State Regulatory Agencies and Professional
Associations," and subsequent GAO reports, as the major problem areas
inhibiting effective state action in curtailing practitioner diversion.
These problems include legislative deficiencies, organizational and resource
problems, and inadequate training. Grants would be established for a specified
term with appropriate matching funds provided by the state. Each grant will
be for a specific effort aimed at the diversion problem.
Through the expansion of its ability to assist the states' efforts, DEA
would identify and provide the necessary resources to correct many of these
deficiencies. In many cases, the first step in the process would be to
establish an Evaluation Task Force to evaluate current state capabilities
and to'identify specific needs. Based on determined needs, funding would
then be provided for such projects as the preparation of improved state
legislation regarding controlled substance handlers; revisions in state
statutes concerning the authority, duties and responsibilities of state
regulatory boards; establishing improved systems of controlled substance
licensing; and initiation of programs to establish Administrative Law Judge
provisions to adjudicate actions against registrants.
172
The expf.nsion of the state assistance authority of DEA is a significant
step in ced'jcing the diversion of legitimately produced controlled substances.
The Grant- 111- Ai deprogram, combined with increased support by DEA in the areas
of training, intelligence support, legal assistance and cooperative informa-
> tion. exchange, will be part of a comprehensive program aimed at combating
practitioner diversion at the state and local level.
2. Strengthening of Registration Requirements
Current statutory authority to deny, revoke, orjsuspend the DEA
registration of a practitioner is limited to three criteria. Action can be
taken upon a finding that a registrant has:
r
(1) materially falsified an application,
(2) been convicted of a drug-related felony, and
(3) had their state license suspended, revoked or denied.
The first criterion has proven virtually useless. The third criterion
is very limited because of the difficulty states have in taking such action.
This leaves the conviction of a drug-related felony as the only practical
avenue for action. Unfortunately, many practitioners who are a clear and
present threat to the health -and safety of the community will never be brought
to trial in the overloaded judicial system. These registrants will continue
to divert into the illicit traffic while the legal system slowly grinds on.
Amendment of Section 303 expands the standards for practitioner registra-
tion beyond the current sole requirement of the authorization of the jurisdiction
in which he/she practices. Additional standards pertaining to consistency
with the public interest are added. They include the recommendation of the
appropriate state licensing or disciplinary authority, prior conviction
record with respect to controlled substances, and compliance with applicable
Federal, state and local laws relating to controlled substances. This amendment
does not provide for a detailed Federal review of all practitioners, but pro-
vides the opportunity for action in the most egregious cases. It also provides
for the full protection of the individual's rights through administrative pro-
cedures that provide the right to a full hearing and judicial appeals.
3. Extended Registration Period
The amendment to Section 302 extends the registration period from 1 year
to 3 years for practitioners. The practitioner level represents almost 98 percent
of all DEA registrants. This move will reduce the paperwork required of these
registrants and will provide substantial cost benefits to the Government.
173
These benefits will be used to provide improved service. An additional
amendment, necessary to maintain an effective registration system, amends
Section 307 by requiring registrants to report changes of address.
4. Scheduling Procedures , ' *
The provision for an emergency scheduling procedure, to be utilized in the
event of an imminent danger to the public safety, is added to Section 201.
-This provision allows DEA to control a drug for one year on an emergency basis,
during which time final determination will be made based on routine scheduling
procedures under Section 201. Controls would be limited to those activities
necessary to assure the protection of the public from drugs of abuse that
appear in the illicit traffic too rapidly to be effectively handled under the
lengthy routine control procedure. The Department of Health and Human Services
is provided a 30-day- period during which they may stop the implementation of
control .
- 5. Miscellaneous Regulatory Provisions
A variety of other provisions involve the clarification of record keeping
requirements, simplification and expansion of the authority to exempt con-
trolled drug preparations without abuse potential from the application
of the regulatory provisions of the Act, facilitate the importation of small
quantities of controlled substances used exclusively for scientific, analytic
or research purposes, and several other actions to ease the burden on the
controlled drug industry without increasing the danger to public safety.
This has only been a brief description of the key proposed amendments.
We are available at any time to meet with the Committee staff to discuss each
.proposed amendment in detail and answer any questions. We believe that this
is a balanced package that will decrease the burden on the law abiding registrant,
who is clearly in the majority, while at the same time enhancing our ability
to successfully attack the drug diversion problem.
We are currently embarking on the largest, most comprehensive effort
ever levied against drug trafficking and abuse. It is our firm belief, which
is supported by death and injury data, that no such effort would be complete
without a major program directed at the diversion of legally produced
drugs into the illicit market.
174
TITLE ■ Vlil -" "JUSTICE ASSISTANCE ACT
An integral part of the President's comprehensive crime
program is the proposal to provide assistance to state and local
law enforcement In order to enlarge their capacity to attack the
problems of violent crime. The primary responsibility and the
direct burden for enforcement of criminal laws and programs of
crime prevention fall on state and local governments, which
Increased their expenditures for criminal justice by 1A6 percent
during the 1970 's. State and local governments account for 87
percent of the total expenditures for criminal Justice. Title
VIII is a couhterbalance to strengthened Federal law enforcement
by providing local law enforcement with additional resources
focused on violent crime, repeat offenders, victim/witness
assistance, and crime prevention.
The proposed Justice Assistance Act is based on agreements
reached in discussions involving members of the Senate and House
Judiciary Committees, representatives of the Department of
Justice, and the White House. It closely parallels the financial
"assistance provisions of legislation passed by the Senate and
■Hou^e during the 97th Congress, following extensive public
"hearings. It embraces the concept of a highly-targeted program
oT -financial assistance to state and local criminal Justice,
operating within a new, streamlined, and efficient organizational
structure. The proposal Incorporates the lessons learned from
past experience with law enforcement assistance programs and
focuses the available resources on a very limited number of high
priority objectives.
The state and local financial assistance portion of current
law (the Omnibus Crime Control and Safe Streets Act of 1968, as
amended), has been phased out. No funds for that activity, the
former Law Enforcement Assistance Administration, have been
appropriated since Fiscal Year 1980. The prior history of LEAA,
however, provides us with some Important lessons. It shows, for
175
example, that after the expenditure of $8 billion over 12 years.
money alone was not the answer to the problem of crime. It
demonstrated that a program whose priorities were unclear and
constantly shifting resulted In minimal payoff. And the history
Indicates that overly detailed statutory and regulatory
specification produces mountains of red tape but little progress
In the battle against crime.
We have also learned, however, that the concept of Federal
seed money for carefully designed programs does work, and that
certain carefully designed projects can have a significant Impact
on criminal Justice. .
Title VIII reflects an appreciation of these lessons and
embodies the program concepts agreed upon last year In the
discussions between members of the Senate, the House, and
representatives of the Administration. It strips away the
compU-cated and expensive application and administrative red tape
required under the earlier program and consolidates the
management of the .program in a single unit of the Department of
Justice. Moreover, it continues the presently authorized Justice
research and statistical programs and insures coordination and
Interaction between the products of research and the programs
implemented under the financial assistance provisions of the
proposal.
The proposal would establish within the Department an Office
of Justice Assistance (OJA), headed by an Assistant Attorney
General. Within this office would be three separate units — the
Bureau of Justice Statistics (BJS), the National Institute of
Justice (NIJ), and a new Bureau of Justice Programs (BJP) — each
headed by a director appointed by the Attorney General. The
directors would be responsible for the day-to-day management of
their units and would have grantmaking authority, subject to the
delegation, coordination-, and policy guidance of the Assistant
Attorney General.
176
-The organizational structure established under current law
(JSIA) was Intended to admlrtlster programs for which $800 million
were authorized and was expected to be engaged in virtually every
aspect of the state and local criminal Justice systems. The
targeted program proposed by Title VIII, on the other hand, will
operate at a fraction of that amount and does not require the
elaborate administrative structure provided In current law.
Moreover, the unified and consolidated administrative structure
under the direction of an Assistant Attorney General gives new
emphasis to Federal participation and cooperation with state and
local criminal Justice. The Assistant Attorney General will be
the focal point of the Department's interrelationship with state
and local governments and will serve as the spokesperson for the
Department on state/local criminal Justice issues and as liaison
with the academic communities on Justice research and statistics.
Both the National Institute of Justice and the Bureau of
Justice Statistics would continue to carry out the Justice
research and statistical programs authorized in the current
statute. The Bureau of Justice Programs would administer the new
technical and financial assistance program. All would be
directly involved 4n strengthening the capacity of state and
local criminal Justice to address the problem of crime.
Advising the Assistant Attorney General would be a Justice
Assistance Advisory Board appointed by the President. This
Board, replacing the two separate boards currently advising the
NIJ and BJS, will consider the full range of criminal Justice
Issues. and policies, rather than the compartmentalized and
narrower view of only research or only Justice statistics.
Under the proposal, the BJP would have the responsibility to
provide technieal assistance, training, and funds to state and
local criminal Justice and nonprofit organizations. This
assistance would be provided through a combination of block and
dlsorctlonary grant funds.
177
The block grant funding will provide each state with an
allocation based on Its relative population and a proportional
share of the funds are to be passed through to local
governinents. The Federal funds would be matched 50/50 and
Individual projects would be limited to no more than three years
of Federal assistance. Moreover, the use of the Funds is limited
to specific types of projects which have a demonstrated track
record of success.
We envision a simplified application procedure for block
grant funds under which the cities and counties would submit
abbreviated applications to the State. Essentially, these
applications would indicate which of the authorized programs the
locality intends to carry out, data to demonstrate the level of
need for assistance, the amount of funds required, and the level
of local' funds available to match the Federal dollars. The state
office, in turn, would compile the local applications along with
those from state criminal Justice agencies, rank them according
to Indices of need, and submit the package along with the various
certifications required under the Act as a single application for
the state's allocation of funds.
The discretionary funds would focus on training and
technical assistance, multi-Jurlsdlctlonal and national programs,
and demonstration projects to test new antl-crlme ideas.
In summary, the assistance provisions of the proposal would
reduce from four to one the number of Presldentlally appointed
officials, replace two advisory bodies with a single Board;
consolidate the research, statistical and financial assistance
efforts into a single organization headed by an Assistant
Attorney General; eliminate the bureaucratic administrative
requirements currently imposed on state and local governinents,
and provide funds and technical assistance to local law
enforcement for activities directly related to violent crime,
repeat offenders, victim/witness assistance, and crime
prevention.
178
Also included in Title VIII is a provision which would
establish a program of emergency law enforcement assistance.
Part L would authorize the Attorney General to approve or
disapprove applications from state governors for the designation
of a "law enforcement emergency Jurisdiction", when an uncommon
situation develops in which state and local resources are
Inadequate to provide for the protection of the lives and
property of citizens or for the enforcement of criminal laws.
When such an emergency exists, assistance in the form of
equipment, training, intelligence information, and technical
expertise can be provided by Federal law enforcement agencies.
In addition, the Office of Justice Assistance would be authorized
to provide funds to the emergency Jurisdiction. We anticipate
that this special aid would be made available in a very limited
number of situations, such as the child-murder investigations in
Atlanta, the destruction of police communications by Hurricane
Frederick, and the Mount St. Helen volcanic eruption.
Two- additional matters addressed in Title VIII pertain to
the Public Safety Officers' Benefits program and the Prison
Industries certification authority.
The Public Safety Officers' Benefits Act of 1976 (PSOB)
authorizes the payment of a $50,000 benefit to the survivors of
law enforcement officers and firefighters who die as the result
of an Injury sustained in the line of duty. Excluded from
benefits under the Act, however, are deaths resulting from the
voluntary intoxication or Intentional misconduct of the
officer. Our experience in administering the program over the
past six years has produced evidence of some difficulty in
applying these exceptions in full accord with the legislative
history of the Act. Consequently, Title VIII Includes a
definition of the term "intoxication". Und«r the proposal, no
benefit would be paid when the deceased officer's blood alcohol
level Is between .lOJt and .2Qt , unless there Is convincing •
179
evidence that the officer was not acting in an intoxicated manner
immediately prior to his death. No payment io permitted if the
blood alcohol level is .20% or greater.
The addition of language to exclude PSOB benefits in
instances of "gross negligence" is a formalization of the
legislative intent expressed by the original sponsors of the bill
and which was believed to have been adequately addressed by the
prohibition against payment if the officer's death was caused by
"intentional misconduct". However, our experience and litigation
on the "gross negligence" issue demonstrates that the more
specific language of the Administration- proposal is required.
(See Harold v. U.S. F. 2d 5^7 (Ct. CI. 1980).)
The amendment to the Prison Industry Enhancement authority
is designed to increase from 7 to 20 the number of projects
eligible for exemption from Federal restrictions on the sale and
transportation of prisoner-made goods. The amendment also makes
several technical changes to present law to permit prisons
seeking exemption to obtain it more easily.
The original Prison Industry Enhancement legislation was
enacted in 1979 as part of the Justice System Improvement Act and
the 7 projects It authorized have been designated. The early
evaluations of the program indicate that the designated projects
have been successful in teaching inmates marketable Job skills,
•reducing the need for their families to receive public
assistance, and decreasing the net cost of operating correctional
facilities. A modest expansion of the program to 20 projects
will permit willing and able prisons to participate in the
program and allow the Department to better evaluate which prison
industry projects best accomplish the program's goals.
One technical amendent to the current law would exempt goods
produced by designated projects from a Federal law which permits
a state to keep prison-made goods in another state from crossing
its borders. The final amendment would require states to provide
180
compensation to Injured Inmates, but not necessarily under the
state's workers' compensation law, as the current legislation
requires. This change Is necessary because many states cannot
offer workers' compensation to Inmates under their own laws.
TITLE IX — Surplus Property Amendment
The last decade has seen dramatic increases in the nation'' s
prison population. Between 1973 and 1983 the prison population
has grown from 204,211 to over 400,000, an increase of 98 percent
in one decade. By comparison, during the same period, the total
U.S. population has increased by only 11 percent.
The rapid rise in prison population has overcrowded correc-
tional facilities and created a number of serious problems.
Overcrowding results in increased prison violence. Other 'nega-
tive effects of overcrowding are idleness and a reduction in the
number of correctional programs available to inmates.
More than half of the State correctional systems are under
court orders stemming from overcrowding. Judges are sometimes
reluctant to sentence offenders to overcrowded institutions.
The lack of adequate prison space, in effect, hampers the opera-
tion of the criminal justice system at all levels.
Many States have responded to overcrowding by double-bunking
and using tents and trailers. While this approach provides a
temporary solution, it is neither satisfactory, safe nor humane.
The construction of new facilities to meet this need is
extremely expensive. It can cost anywhere from $30,000 to $90,000
per bed to construct a prison facility. And, it can take anywhere
from five to seven years to obtain funds and then construct and
complete a facility. An immediate, short-term, low cost solution
is desperately needed.
One solution to this problem is amendment of the Federal
Property and Administrative Services Act of 1949 to provide
Federal surplus property to State and local governments for cor-
rectional use at no cost. Currently, the Federal Property and
Administrative Services Act of 1949, as amended (40 U.S.C. 484)
permits transfer of surplus federal property to States and
181
localities for public benefit use, not specif Icially including
correctional facilities. We support legislation that would
amend the law to permit, specifically, transfer of federal real
and related personal property to States for correctional use.
Caking benefits accrued to the United States into account in
fixing the sale or lease price. We support the inclusion of
proposed correctional use properties as eligible for transfer.
In order to encourage and facilitate these types of transfers
and to meet the current pressing need for more correctional
facilities, we propose that these transfers be permitted without
monetary consideration to the United States.
The Attorney General's Task Force on Violent Crime recommended
in its first report that the Attorney General work with the appro-
priate governmental authorities to make available, as needed and
where feasible, abandoned military bases for use by States and
localities as correctional facilities on an interim and emergency
basis only. The report also asks the Attorney General to work
with the appropriate government authorities to make available,
as needed and where feasible, federal property for use by States
and localities as sites for correctional facilities.
As a direct result of the findings of the Task Force on
Violent Crime, the Attorney General directed the Bureau of Prisons
to form a clearinghouse for correctional facilities. The clear-
inghouse, as it now operates, can provide information to concerned
parties and serve as liaison with GSA and the Department of
Defense regarding potential correctional facilities, such as
former military bases. We view the clearinghouse function as an
information pipeline that is necessary, but independent of the
surplus and disposal actions, which should be performed by GSA.
Four States have acquired surplus property for correctional use,
but under existing law they must either lease or purchase the
property at fair market value. This is a financial burden that
many can hardly afford to bear. A more workable solution is
needed.
At present, State and local governments must pay for surplus
Federal property they intend to use for correctional purposes.
182
By amending the Federal Property and Administrative Services Act
of 1949 to permit conveyance or lease, at no cost, of appropriate
surplus Federal properties to State and local governments for
correctional use, we can provide to State and local governments
immediate additional capacity while relieving State and local
budgets of the fiscal burden of constructing new facilities.
TITLE X - REINSTITUTION OF CAPITAL PUNISHMENT
The purpose of Title X of the Administration's bill is to
provide constitutional procedures for the imposition of capital
punishment. Various provisions of the United States Code now
authorize the imposition of the sentence of death for crimes of
homicide, treason, and espionage. However, in all but one
instance, these sentences are unenforceable because they fail to
incorporate a set of legislated guidelines to guide the sen-
tencer's discretion in coming to a determination whether the
sentence of death is merited in a particular case.V This
requirement was first articulated by the Supreme Court in its
decision in Furman v. Georgia, 408 U.S. 238 (1972). In a series
of decisions following Furman, the Court has given further
guidance on the constitutional requisites of a statute authoriz-
ing the imposition of capital punishment. Notable in this series
of cases was a group of landmark death penalty decisions in which
the Court held that the death penalty was a constitutionally
permitted sanction if imposed under certain procedures and
criteria which guarded against the unfettered discretion con-
demned in Furman , but which retained sufficient flexibility to
2/ Only the death penalty provisions of the aircraft piracy
statute, 49 U.S.C. 1473(c), which were enacted after Furman v.
Georgia, 408 U.S. 238 (1972), appear to comport with the death
penalty decisions of the Supreme Court over th-e last decade.
183
allow the consideration of aggravating and ^litig£^.tlng factors in
each case.^/
In the decade since the Furman decision, two-thirds of the
States have enacted laws to restore the death penalty as an
available sanction for the most serious crimes when committed
under particularly reprehensible circumstances. During this same
period, the Congress has on several occasions considered legisla-
tion to provide constitutional procedures that would permit the
restoration of the death penalty to the federal criminal justice
system, but with the exception of a death penalty provision
included in anti-aircraft hijacking legislation in 197^, no such
statute has been passed by the Congress.
As the decisions of the Supreme Court over the past ten
years have made clear, the death penalty is a constitutionally
permitted sanction for the most grave offenses, committed under
aggravating circumstances, provided it is imposed under proce-
dures that guard against arbitrariness and disproportionality .
Nonetheless, enactment of legislation to permit reinstitution of
the death penalty at the federal level has been a controversial
issue, because of strongly felt, but disparate, views on the
propriety of restoring the availability of the death penalty as
an element of the federal criminal justice system.
We are aware that there are men of ability, goodwill, and
conscience who believe that it is never justified for society to
deprive an individual of life, however grave and despicable may
have been his crimes and however much a threat his actions may
pose to others in the community or to the survival of the
community itself. But while recognizing these views, this
Administration does not subscribe to them. As both the President
and the Attorney General have repeatedly indicated in public
statements, we support the imposition of the death penalty under
carefully circumscribed conditions for the most serious crimes --
2,/ Gregg v. Georgia, 1428 U.S. 153 (1976); Proffitt v. Florida,
^28 U.S. 242 (1976); Jurek v. Texas, U2S U.S. 262 (1976);
Woodson V. North Carolina, 428 U.S. 280 (1976); and Roberts
V. Louisiana, 428 U.S. 325 (1976). '
184
a position also held by a majority of the American public. 3/
In our view, the death penalty is warranted for two princi-
pal reasons. First, while studies attempting to assess the
deterrent effect of the penalty have reached conflicting results,
we believe that common sense supports the conclusion that the
death penalty can operate as a deterrent for certain crimes
involving premeditation and calculation, and that it will thus
save the lives of persons who would otherwise become the perman-
ent and irretrievable victims of crime. Second, society does
have a right — and the Supreme court has confirmed that right --
to exact a just and proportionate punishment on those who
deliberately flout the most basic requirements of its laws; and
there are some offenses which are so harmful and so reprehensible
that no other penalty, not even life imprisonment without the
possibility of parole, would represent an adequate response to
the defendant's conduct.
In the 97th Congress, the Senate Judiciary Committee devoted
considerable effort to the development of leg.islation that would
establish constitutional procedures for the imposition of the
death penalty on the federal level. The bill reported by the
Committee, S. 114, improved on bills introduced in earlier
Congresses and incorporated provisions to comport with the Supreme
Court's capital punishment decisions over the past decade. The
provisions of Title X of the Administration's bill are based,
with only minor modifications, on this legislation approved by
the Judiciary Committee in the last Congress. Also, they differ
in only minor respects from S. 538, death penalty legislation
now pending consideration by the Committee .V
The primary focus of the provisions of Title X is on the
establishment of constitutional procedures for the imposition of
the death penalty. For the most part, the scope of offenses for
Vhlch capital punishment may be considered as a sanction remain
3/ See S. Rep. No. 97-143, 97th Cong., 1st Sess. 19 (1981).
V The Department's report on S. 538 will soon be transmitted
to the Committee.
185
the same as under current law. One significant change, however,
is an amendment that would (iermit consideration of the death
penalty for an attempted assassination of the President which
resulted in bodily injury to the President or which otherwise
came dangerously close to causing the death of the President .2/
This provision was incorporated in S. 1 1 U by the Judiciary
Committee during the last Congress.^/ In three other respects,
however, the bill restricts the availability of the death penalty
under current statutes. First, in accordance with the Supreme
Court's decision in Coker v. Georgia, UBS U.S. 58H (1977), the
death penalty has been deleted for the offense of rape. Second,
the availability of the death penalty for peacetime espionage
has been limited to cases involving strategic weapons or major
elements of national defense. Third, through the mechanism of
mandatory threshold aggravating factors, the availability of the
death sentence for homicide is limited to instances in which the
defendant either intentionally killed the victim or while engaged
in the commission of a felony, intentionally participated in an
act which resulted in the death of an innocent victim and which
the defendant knew or reasonably should have known would result
in such a death.
The procedural provisions of Title X may be summarized as
follows. Under these provisions, the issue of the propriety of
the de^th penalty in a particular case is the subject of a
separate sentencing hearing held after the entry of a guilty plea
or the return of a guilty verdict. The death penalty may be
imposed only pursuant to such a hearing.
5/ The bill would also authorize the death penalty for murder of
a foreign official, official guest, or internationally protected
person and for -homicide committed in the course of a kidnapping
-- offenses which do not now provide for the death penalty
because they were enacted or amended in a period following
Furman, when the constitutional requisites of a death penalty
statute were unsettled.
^/ A memorandum prepared by the Department's Office of Legal
Counsel on the constitutionality of such a provision was sub-
mitted to the Judiciary Committee during its consideration of
S. 114 in the last Congress' and is reproduced in the published
hearings of the Committee. See, Capital Punishment, Hearings
before the Committee on the Judiciary, United States Senate on
S. 114, 97th Cong., 1st Sess. 54-65 (April 10, 27 and May 1, 1981)
25-694 0-84-13
186
The first procedural requirement is that the government
file, a reasonable time before trial, a notice that it will, in
the event of conviction, seek the death penalty and a description
of the aggravating factors it will seek to prove as the basis for
the penalty. Generally, the sentencing hearing is to be held
before a jury, either the jury that determined guilt, or where
the defendant was convicted on a plea of guilty or pursuant to
a trial without a jury, before a jury specially impaneled for the
purpose of the sentencing hearing.
The focus of the hearing is on the consideration of evidence
of aggravating and mitigating factors bearing on whether the
death penalty is justified under the circumstances of the case.
Title X sets out specific mitigating factors which may be
considered, but, consistent with the Supreme Court's decision in
Lockett v. Ohio, M38 U.S. 586 (1978), the jury may consider
other, unenumerated mitigating factors as well. Two sets of
specific aggravating factors are set out; one set is applicable
to offenses of treason and espionage and the other applies to
homicides and the attempted assassination offense. With respect
to aggravating factors, the jury may also consider ones not
specifically enumerated. However, a finding of an aggravating,
factor or factors other than those specifically listed in the
bill cannot alone support imposition of the death penalty.
At the sentencing hearing, the government bears the burden
of proving any aggravating factors beyond a reasonable doubt.
With respect to mitigating factors, the burden of proof is on the
defendant, but his proof need meet only a preponderance standard.
The jury is required to return special findings concerning any
aggravating or mitigating factors it determines to exist, and
such findings must be supported by a unanimous vote. If no
aggravating factor is found to e^ist, or if, in the case of a
homicide offense, one of the mandatory threshold aggravating
factors is not found, the court must sentence the defendant to a
sentence other than death.
Should the jury return findings of aggravating factors (in
the case of homicide offenses, aggravating factors in addition to
187
those which serve as a threshold limitation) , it then must
proceed to determine whether these factors outweigh any
mitigating factors found, or if there were no mitigating factors
established, whether the aggravating factors alone are sufficient
to justify imposition of the death sentence. Based on this
consideration, a finding of whether the sentence is merited must
be returned. Where the determination is made by a jury, it is
to be by unanimous vote. The court is bound by the unanimous
decision of the jury, an approach upheld by the Supreme Court in
Gregg , supra ■
Like S. 1 1 ** as approved by the Judiciary Committee in the
last Congress, our proposal requires an instruction to the jury
before whom the sentencing hearing is held that it not consider
the race, color, national origin, creed, or sex of the defendant
in determining whether the sentence of death is justified. Each
juror* is to certify that none of these factors entered into his
decision.
Title X also includes a provision, not incorporated in
S. 1 T4 but which appears in the death penalty bill now before the
Committee, S. 538, which permits, in capital cases where it is
determined that the death penalty is not justified, the imposi-
tion of a life sentence without possibility of parole.
Also addressed in Title X are the appropriate procedures and
standards for appellate review of a death sentence. Appeal of
the sentence is to be filed in the same manner as an appeal of a
conviction. Consolidation of the appeal of sentence with the
appeal of conviction is specifically sanctioned, and review in
capital cases is to be given priority over all other appeals. In
its review, the appellate court must consider the entire record
of the case, the .procedures employed in the sentencing hearing,
and the findings as to- particiilar aggravating and mitigating
factors'. Affirmance of the death sentence is required if the
appellate court finds that the sentence of death was not imposed
under the influence of passion, prejudice, or any other arbitrary
factors and that the information presented supports the findings
with respect to aggravating and mitigating factors upon which the
188
sentence was based. In all oth.er cases, the appellate court must
remand the case for reconsideration under the sentencing provi-
sions of this Title.
The provisions of Title X of the Administration's bill
combine, in our .view, to establish procedures for determining
whether the sentence of death is justified in a particular case
that comport fully with the constitutional teachings of the
Supreme Court over the last decade. We believe that in the
carefully delineated circumstances to which Title X would apply,
the opportunity for imposition of the death penalty should be
restored. A criminal justice system limited to lesser sanctions
is lacking in adequate deterrence and fails to meet society's
need to exact a just and proportionate punishment for the most
grave and reprehensible of crimes.
TITLE XI - Labor "Racketeering Amendments; and
TITLE XII - Foreign Currency Transaction Reporting
Amendments
As these Titles of the bill are before the Committee on
Labor and Human Resources and the Committee on Banking, Housing
and Urban Affairs respectively a statement of their provisions
is not included herein.
TITLE XIII - Federal Tort Claims Act Amendments
Title XIII would make the United States the exclusive defen-
dant for all torts committed by federal employees within the scope
employment and would, for the first time, make the United . States
liable for torts arising under the Constitution of the United States.
The title would provide for the substitution of the United States
for defendant employees acting within the scope of their employment
in all suits alleging common law or constitutional torts. Title
XIII constitutes a significant, equitable and badly needed reform
of federal tort law.
The current state of federal tort law, at least in the area of
the constitutional tort, is unsatisfactory and counterproductive
189
from the perspective of every participant. Since the Supreme Court
announced that a cause of action was available against individual
federal officers in 1971, federal employees have been the subject
of an increasing number of suits filed personally against there at
every level of government. 1^/ They are being sued for doing no
more than carrying out the duties which Congress and the President
have ordered them to perform. In a society where virtually every
other identifiable group is protected by some form of indemnity,
insurance or rule of law, this exposure to personal financial ruin
is shocking and unconscionable. In reflecting upon this, one United
States District Judge has beeen moved to comment, "The effect of
this development upon the willingness of individuals to serve their
country is obvious." 2^/ If, as opponents to this type of legisla-
tion maintain, deterrence is the object of such personal suits, that
which is deterred is competent government. Effective action in all
is chilled. Resources and talent are diverted. Careers are short-
ened, recruitment discouraged, endless nonproductive litigation
encouraged. ^7
Despite the ability to sue federal employees, the claimant,
who may have a meritorious claim of governmental misconduct in vio-
lation of his constitutional rights, in practical terms has virtu-
ally has no remedy. As a result of the sound doctrine of sovereign
immunity, the United States cannot be sued for a constitutional
tort because it has not consented to be sued. 4/ As a result, a
plaintiff frequently faces enormous problems in attempting to even
achieve service of process and jurisdiction over individual defen-
dants and may only look to the individual assets of those persons
should he obtain a judgment. Our records indicate that of the
thousands of lawsuits that have been filed, only sixteen have re-
sulted in a judgment and, of those, we believe that only six have
ultimately been paid. b_l Despite the fact that there is no hope
of meaningful monetary recovery, suits continue to be filed at an
alarming rate. It appears that they are often prompted by reasons
other than money damages such as personal revenge or harassment up-
on a public official or as a means of collateral attack upon an
otherwise legitimate criminal or civil enforcement effort. The
190
proportion of recoveries to the number of law suits filed also .
demonstrates that federal public servants do not violate the rights
of their fellow citizens with any significant frequency. Thus the
current threat of personal lawsuits under which they must now operate
is unfair and unjustified. The severe disruption that these lawsuits
cause in the lives of federal employees cannot be overemphasized.
The American citizen and taxpayer is not being well served by
the current state of the law. The system for redress is not func-
tioning and conscientious federal employees are traumatized by the
threat or reality of suit, sometimes into inaction. In addition,
the present scheme engenders protracted and expensive litigation
which costs the taxpayers more money than it should and contributes
to the serious and increasing problem of backlogs and delays in the
courts. Because the constitutional tort or Bivens case concerns the
personal finances of the individual defendants it can only be settled
in the rarest of cases. In addition, multiple defendants are sued
in almost seventy-five percent of the cases. As a result, conflicts
of interest sometimes arise and the Department of Justice must hire
private counsel to represent each of the groups whose factual posi-
tions collide. It is anticipated that the cost of hiring private
attorneys in those cases will exceed $1,300,000.00 for fiscal years
1982, 1983 and 1984.
Previous testimony before Congress by several United States
Attorneys on similar proposals also indicated that a great deal
of extra attorney time is required for each matter in order to
deal with the personal concerns and trauma of the individual
defendants. Those same witnesses also elaborated on the very
difficult ethical, client relations and resource problems caused
by the current state of the law. b_l The decisions that must be
made by both clients and Department of Justice attorneys who repre-
sent them in these cases are often excrutiating. They must be
made despite the fact that, most of the lawsuits are wholly without
merit and will be eventually disposed of on motion. Many of the
191
cases will proceed to resolution at a snail's pace at large mone-
tary and emotional expense to all parties. Thus, from the perspec-
tive of any objective observer, the current scheme of civil tort
liability, particularly in the'area of federal constitutional rights,
is a failure.
Were Title XIII enacted, federal public servants would no
longer be subjected to the specter of personal financial ruin and
inordinate diversion from their duties. At the same time, their
conduct would just as surely be amenable to the scrutiny of the ,
courts through an action brought against the United States where
the reasonableness of the actions of the employee could be chal-
lenged. The citizen would gain his day in court and a defendant,
the United States, amenable in every case to personal jurisdiction
and service of process, a defendant who would be in a position to
settle cases and who could pay any judgments awarded to the plain-
tiff. Cases would proceed much more expeditiously to trial and
resolution with the cost to all parties drasti-cally reduced.
Opponents to legislation of this nature have historically re-
lied upon an argument best summarized as one of accountability. Al-
though the number of adherents to this point of view seems to be de-
clining, the argument is that the threat of suit deters public ser-
vants from doing wrong. The short answer to this is that it prevents
the public servant from doing anything, including what is right,.
As one witness before Congress has stated, "The deterrence we have
is that of deterring federal employees from doing their duty." l_l
The increasing number of federal officials who are aware of the
state of the law cannot help but face a difficult decision with
trepidation because of what should be an extraneous consideration
for his or her personal welfare. The law enforcement officer, the
welfare case worker, the probation officer, the meat inspector,
the contract officer, the veterinarian, the revenue agent, the
congressional staffer, the personnel manager, the job foreman,
and even the forest ranger are at least given pause and perhaps
prevented from carrying out the very mission that Congress has set
for them. ^/
In addition, this accountability argument places too much
emphasis upon money damages as the only meaningful remedy and ignores
192
the array of other sanctions available ranging from agency punish-
ment including termination, to a finding that the actions were beyond
the scope of employment and therefore not defensible by the United
States, to injury to professional reputation, to criminal prosecu-
tion.
Perhaps the best rebuttal to the deterrence argument, however,
is the fact that its acceptance means that the American people and
government continue to stumble along with the current inadequate
system. In other words, in order now to be sure of having the nar-
row, yet very unlikely, legal possibility of punishing the very few
through civil damages, we have placed in jeopardy and confusion the
functioning of all civil servants and have not correspondingly pro-
vided the plaintiff with a remedy that he or she can expect to be
realized. The current "remedy" of deterrence is thus grossly dis-
proportionate to the problem.
Title XIII preserves the defense of qualified immunity on be-
half of the United States with respect to constitutional torts.
It is important to point out that, while labelled as an immunity,
it is really an affirmative defense that simply gives the United
States the opportunity to defend the conduct of its employees as
having been reasonable. The Supreme Court, in the case of Harlow
Fitzgerald, 102 S.Ct. 2727 (1982), recently defined the test of
qualified immunity to be one solely of objective reasonableness.
Under traditional tort law analysis, it is the failure to act as a
reasonable man in violating a duty owed to an injured person which
triggers liability. In the private sector, an employer can assert
the reasonableness of the conduct of an employee when the employer
is sued for a tort committed by the employee. Retention of the
qualified immunity defense would simply echo that legal principle.
Elimination of the qualified immunity defense would be a declara-
tion by the Congress that considerations of reasonableness are ir-
relevant to the conduct of government agents. Taxpayers would pay
damages in cases when courts determined with hindsight that techni-
cal violations had occurred even though the conduct of the employee
was properly motivated and eminently reasonable. Agencies and
agents would hesitate to act for fear of damage claims which would
193
reflect adversely upon theni because they would be prevented from
defending their conduct as reasonable in court. In other words,
the government would be placed in a situation of strict liability
were the defense to be eliminated, a disadvantage to the United
States clearly contrary to existing provisions of the Federal Tort
Claims Act and to reason and sound poli'cy. 9/ Additionally, elimin-
ation of the defense would seriously detract from the ability of
the courts to fully ventilate and get to the truth of alleged mis-
conduct. That is because the issue of the reasonableness of the
conduct would have been declared to be irrelevant to liability; and
thus so would many of the pertinent facts be rendered irrelevant.
Accordingly, the Department strongly urges that the defense continue
to be retained.
Enactment of Title XIII would, for the first time, permit plain-
tiffs to have recourse to a meaningful defendant because the United
States would be waiving sovereign immunity for constitutional torts.
This is a major reform and benefit that cannot be overstressed. At
the same time, the cloud of personal, financial liability would be
removed from federal officials who could get on with the business
of proper government. Perhaps most importantly, the courts would
be enabled to deal with the serious questions that arise in constitu-
tional cases of this nature in an expeditious and meaninful way and
award genuine relief to deserving plaintiffs.
FOOTNOTES
1/ Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics. 403 U.S. 388 (1971).
2/ Halperin v. Kissinger, 606 F.2d 1192, 121-4 (D.C. Cir. 1979),
Judge Gesell concurring.
3/ -See, Hearings Before the Subcommittee on Administrative Law
and Governmental Relations of the Committee on the Judiciary, House
of Representatives, Ninety Seventh Congress, on H.R. 24, October 13,
1981; May 19 and 20. 1982.
See also. Hearings before the Subcommittee on Agency Admin-
istration, Committee on the Judiciary, United States Senate, Ninety
Seventh Congress, on S. 1775, November 13 and 16, 1981; March 31,
1982.
4/ See, Duarte v. U.S., 532 F.2d 850 (2d Cir. 1976); Norton v. U.S. ,
581 F.2d 390 (4th Cir. 1978); Ames v, U.S.. 600 F.2d 183 (8th Cir.
1979); Jaffee v. U.S.. 592 F.2TTr2 (3r^Cir. 1979); Baker v. F & F
Investment Co. , 4F5~F.2d 829 (7th Cir. 1973).
194
5/ Askew V. Bloemker. S-CIV-73-79 (S.D. 111., Sept. 29, 1978). DEA
agent was held personally liable for violating the Fourth Amendment
rights of three plaintiffs by conducting a search without probable
cause or a warrant; the jury awarded damages of $22,000; plaintiffs
agreed not to enforce the judgment against the uninsured federal
agent but rather to proceed against defendant state employees who
were insured.
Seguin v. Hightower, No. C76-182-V (W.D. Wash., Oct. 24, 1978).
Customs agent helo personally liable to the owner of an impounded
car used in a smuggling scheme because the agent delayed four and
one half months in initiating forfeiture action; the court awarded
the plaintiff $7,300 for rental value of the car plus consequential
damages .
Jihad V. Carlson, CA No. 5-71-805 (E.D. Mich., Oct. 18, 1976).
Prison guard held personally liable for $992 to inmate for viola-
ting his right to religious freedom in placing him in segregation
for refusing to shave his beard; the judgment was reversed on appeal.
Weiss v. Lehman, CA No. 375-36 (CD. Idaho, July 14, 1978).
Forest service ranger held personally liable for $1,000 for viola-
ting plaintiff's Fifth Amendment rights by destroying property owned
by plaintiff which had been apparently abandoned; the Ninth Circuit
Court of Appeals affirmed the judgment. A Petition for Writ of
Certiori was filed in the Supreme Court. The Court granted the
petition and remanded the. case for reconsideration (No. 80-2159,
Oct. 5, 1981) in light or Parratt v. Taylor, 49 USLW 4509, Hay 18,
1981. The Ninth Circuit Court of Appeals then reversed and entered
judgment for the defendant.
Halperin v. Kissinger, 424 F.Supp. 838 (D. D.C. 1976) and 434
F.Supp. 1193 (D. D.C. 1977). Former President Richard Nixon, H.R.
Haldeman and John Mitchell held personally liable in damages for
violating plaintiff's Fourth Amendment rights in authorizing wire-
taps.
' Dellums v. Powell, 566 F.2d 167 (D.C. Cir. 1977). Chiefs of
U.S. Capitol and D.C. Police held personally liable for arrests at
Capitol Building during anti-war demonstration in class action with
1,200 plaintiffs; a total judgment of approximately 2 1/2 million
dollars plus interest was entered against all defendants and subse-
quently paid through Congressional action.
Tatum v. MorCon, 562 F.2d 1279 (D.C. Cir. 1977). Inspector of
D.C. Police held personally liable for $500 for disrupting 29 demon-
strators at the White House.
Schoneberger v. Hinchcliffe, CA. No. 76-234 (D. Vermont, Sept.
22, 1980) . FBI agent personally held liable for $150 for retaining
a firearm (for too long a period) seized during a raid for illegal
aliens.
Saxner v. Benson, CA. No. 75-47-C (S.C Indiana 1981). Three
members of a Federal Corrections Institution Disciplinary Committee
held personally liable for $3,000 apiece for violating an inmate's
procedural due process rights.
Hobson V. Jerry Wilson, et al., D. D.C. Civil Action No. 76-
1326. A total of $711,000 was awarded seven former antiwar acti-
vists against fourteen present or retired officers of the FBI or
the Washington, D.C. police department. The suit charged violation
of constitutional rights during undercover surveillance activities
in the 1960s and 7-Os. The verdict was complex, awarding different
amounts for and against different parties.
Epps. V. United States, et al. , D. Md. CA No. 0-78-2373. A
judgment of $200,000 was awarded against a Field Branch Chief of
the IRS for allegedly vandalizing the property of the plaintiff
while her business was in the possession of the IRS. The judgment
was subsequently vacated on post trial motions.
195
Nees V. Bishop, et al. , D. Col. 524 F.Supp. I3l0 (1981). $1,000
was awarded Co a plaintiff who alleged that the losing defendant had
deprived him of his right to counsel by allegedly advising state
custodial authorities that he need not see a state public defender
since he had been incarcerated on a federal charge.
Clymer, Jr. v. Grzegorek, et al. E.D. Va. , CA No. 80-1009-12
(19827"! Damages of $1,000 were awarded against a former federal
correctional institution warden in favor of a prisoner who claimed
overcrowding and understaf f ing led to violence and an assault upon
him.
Whitney v. Skinner, E.D. Wash. C-78-139 (1982). A judgment of
$9,000 was awarded to a Federal employee who alleged that her
rights were violated by her supervisor's action that "intimidated
her into falling".
Rodgers v. Hyatt, 83-1 U.S.T.C. ^ 9139 (10th Cir. 1983). The
Tenth Circuit Court of Appeals affirmed a jury verdict of $1,000
against an IRS official for disclosure of tax return information
notwithstanding the fact that the information had been fully dis-
closed in a prior court proceeding.
Doran v. Houle, D. Mont. 79-14-GF (1982). A group of veteri-
narians were awarded $272,000 against a Federal veterinary inspec-
tor on the allegation that he wrongfully denied them licenses neces-
sary for innoculation of sheep. The jury trial lasted ten days and
was the subject of extensive media attention. The adverse decision
has had a devastating impact on the individual federal defendant
and upon the Veterinary Service. It is presently on appeal before
the Ninth Circuit.
6/ See, testimony of Stanley S. Harris and Royce C. Lamberth
before this Subcommittee on May 19, 982 and the testimony of Jerome
F. O'Neill, John S. Martin, Jr., and William B. Cummings, on November
13, 1981 before the Subcommittee on Agency Administration of the
Committee on the Judiciary, United States Senate.
7^/ Testimony of Jerome F. O'Neill, supra.
8^/ In an article entitled "Suing Our Servants" appearing in the
1980 edition of The Supreme Court Law Review published by the Univer-
sity of Chicago, (page 281) Peter H. Schuck, Associate Professor of
Law, Yale Law School, makes a convincing case for the proposition
that the most frequent targets of such suits are the everyday public
servants who operate at the level which deals directly with the pub-
lic. It is important to understand that our support for proposals
of this nature is not primarily based upon a desire for relief of
high level officials.
9/ See, letter of April 11, 1983 from Deputy Attorney General
Edward C. Schmults to the Honorable Charles E. Grassley concerning
the qualified immunity defense.
196
Title XIV - Miscellaneous Violent Crime Amendments
Title XIV in divided into subparts A - M and is designed to
strengthen a number of provision dealing with violent crime. It
also creates a limited number of new offense involving violent
crime to fill gaps in existing law. ~
Part A - Murd-er-for-Hire and Violent Crimes in Aid of Racketeering
Section 1401 adds a new section 16 to title 18 to define the
term "crime of violence." The term is used in several new or
revised sections as a result of other provision in this title
such as section 1U02 proscribing violent crimes committed for
money or other consideration, and section 1403, prohibiting
solicitation to commit a crime of violence. _The definition of
the term "crime of violence" is taken from the Senate version of
the Criminal Code Reform Bill (S. 1630, 97th Cong.) and predeces-
sor bills. The term means an offense that has an element the
use, attempted use, or threatened use of force, or any other
offense that is a felony and that involves a substantial risk
that physical force may be used against the person or property of
another.
Section 1402 proscribes murder and other violent crimes for
hire. It is similar to a provision contained in S. 2572 as
passed by the Senate in the 97th Congress and would add two new
sections, 1952A and 1952B, to title 18 of the United States Code.
Although designed primarily for use in cases of murder-f or-hire
carried out as the orders of organized crime figures, section
1952A would also reach other such calculated murders. Section
1952A follows the format of 18 U.S.C. 1952, interstate travel in
aid of racketeering.
Section 1952A would reach travel in interstate or foreign
commerce or -the use of the mails or a facility in interstate or
foreign commerce (such as a telephone if used for an interstate
call) with the intent that a murder be committed in violation of
state or Federal law. The murder must be planned. or carried our
as consideration for the receipt of something of pecuniary value
or a promise or agreement to pay something of pecuniary value.
197
Both the person who ordered the murder and the "hit-man" would be
covered. If the victim is killed the punishment can extend to
life imprisonment and a $50,000 fine but lesser punishments are
provided if the planned murder did not take place or the attempt
resulted only in an injury to the victim.
Section 1952B is designed to deal with contract murders and
other violent crimes by organized crime figures which do not
involved interstate travel or other interstate facilities or are
committed not for money but rather as a part of membership in a
criminal organization. This section proscribes murder, kidnap-
ing, maiming, serious assaults and threats of violence committed
as consideration for payment or a promise to pay anything of
pecuniary value from an "enterprise" engaged in "racketeering
activities." "Racketeering activity" is defined as set forth in
the RICO statute, section 1951, and "enterprise" is defined as an
organization, group or entity whose activities affect interstate
commerce. The proposed section also covers murders, kidnapings,
maimings, serious assaults and threats of violence committed as a
means of gaining entrance into or improving one's status in an
enterprise engaged in racketeering activity. Attempts and
conspiracy to commit these offenses are also covered. The person
who ordered the offenses set forth in the section could also be
punished as an aider and abettor under IB U.S.C. 2.
Part B - Solicitation to Commit a Crime of Violence
Section 1H03 adds a new section 373 to title 18 of the
United States Code, to proscribe the offense of solicitation to
commit a crime of violence. This section is of principal utility
in a situation where a person makes a serious effort to induce
another to engage in activity constituting a crime of violence
but is unsuccessful in doing so. The solicitor is clearly a
dangerous person and his act merits criminal sanctions. Yet at
present there is no federal law that prohibits solicitation
generally, although a solicitation offense was included in
S. .2572 as passed by the Senate in the 97th congress and in
S. 1630 (97th Cong.), the proposed federal criminal code reform
bill. See S. Rept. No. 97-307, pages 179-186.
198
Only solicitation to commit a crime of violence is here
covered. "Crime of violence" is defined, in a new section 16 to
be added to title 18, as a crime that has as an element the use
or attempted use of physical force against another's person or
property, or any felony that involves a substantial risk that
physical force will be so used. Thus, although the new offense
rests primarily on words of instigation to crime, what is
involved is legitimately prescribable criminal activity, not
advocacy of ideas which is protected by the First Amendment right
of free speech.
The punishment provided for the new offense is up to one
half the term of imprisonment and one half the fine authorized
for the punishment of the crime solicited, and up to twenty years
imprisonment for solicitation of an offense punishable by
death. 1/
Part C - Felony Murder
Section 1404 expands the definition of felony murder in
18 U.S.C. 1111. It is identical to a provision in S. 2572 as
passed by the Senate in the last Congress. Presently, premedi-
tated murder is murder in the first degree. Under common law, a
murder committed during a common law felony was held to be
committed with a sufficient degree of malice to warrant punish-
ment as first degree murder, but section 1111 only applies the
felony murder doctrine to killings committed during an actual or
attempted arson, rape, burglary, or robbery. The amendment would
expand the list of underlying offenses by adding escape, murder
— for example if the defendant acts in the heat of passion in an
attempt to kill A but instead kills B — kidnaping, treason,
espionage, and sabotage since these crimes also pose as great, if
not, more, danger to human life, as the four presently listed.
^J We suggest that the legislative history indicate that
"punishable by death" refers to those offenses, such as
murder (18 U.S.C. 1111), in which Congress has included the
death penalty in the statute, irrespective of whether the
penalty is presently enforceable. Alternatively, the
Committee may wish to amend this provision to apply the
twenty-year penalty to solicitation of a crime that covers a
sentence of up to life imprisonment.
199
Part D - Mandatory Penalty for Firearm Use During Violent Crimea
Section TJOS provides for a mandatory sentence of imprison-
ment for a determinate period of time for using or carrying a
firearm in a federal crime of violence. This section is similar
to one included in S. 2572 2/ ag passed by the Senate in the
97th Congress and carries out one of the recommendations of the
Attorney General's Task Force on Violent Crime. This section
amends present section 924(c) of title 18 which attempts to
provide for a mandatory minimum sentence, but is drafted in such
a way that a person convicted of a violation may still be given a
suspended sentence or placed on probation for his first viola-
tion. Moreover, present section 924(0) is ambiguous as to
whether the sentence for a first violation may be made to run
concurrently with that for the underlying offense. In addition,
even if a person is sentenced to imprisonment under section
924(c), the normal parole eligibility rules -apply. Section 1405
•eliminates the possibility of a suspended or concurrent sentence,
probation, and parole. A person convicted of using or carrying a
firearm in relation to a crime of violence would be sentenced to
imprisonment for five years for his first conviction and ten
years for a subsequent conviction.
Part E - Armor Piercing Bullets
Section 1405 is a response to the problem of criminal use of
bullets that will pierce the type of armor - resistant clothing
now being employed by many police departments. The recent
publicity given to the so called "cop killer" bullets has posed a
new threat to the police officers and public figures who depend
on "body armor for protection against surprise handgun attacks.
The section adds a new section 929 to title 18 to provide for a
mandatory term of imprisonment for using armor-piercing handgun
ammunition during and in relation to a federal crime of violence.
2/ While Part D is similar to a provision in S. 2572, Part D
- has been drafted to ensure that it applies to offenses such
as bank robbery and assault on a federal officer which
already provide for an enhanced, but not mandatory punish-
ment for the use of a firearm. The way in which the provi-
sion in S 2572 was phrased would probably have precluded its
use in such a'case in light of recent Supreme Court decisions
construing section 924(c). See Simpson v. United States, 435
U.S. 6 (1978), and Buslc v. United States, 446 U.S. 390
(1980).
200
It is identical to a provision in S. 2572 as passed in the last
Congress. A mandatory sentence of imprisonment for five years is
provided for using or carrying a handgun loaded with ammunition
which would, if fired form the handgun, pierce the type of body
armor commonly worn by police officers. A person convicted of a
violation of this section could not be given a suspended or
concurrent sentence or be placed on probation and he would not be
eligible for parole.
Since the new section would only he effective if the bullet
is used or carried during a violent crime, it does not threaten
any legitimate sporting or recreational use of any type of
ammunition of firearm.
It should- be noted that the mandatory punishment for the use
of the armor-piercing ammunition under section 929 is in addition
to the mandatory punishment for the use or carrying of the
firearm under the amended section 924. Thus a person who robbed
a bank with a handgun loaded with armor-piercing bullets would,
if charged with and convicted of a violation of 18 U.S.C. 924 and
929, be sentenced to a mandatory term of imprisonment of ten
years — five years for carrying the gun and five for the bullets
— in addition to any punishment for the underlying bank robbery
offense. This cumulative mandatory punishment for firearms and
bullets is intended to serve a clear notice on criminals that
they face substantial jail time for their use and to persuade
them to leave firearms and particularly dangerous bullets at home
when they are choosing weapons.
Part F - Kidnaping of Federal Officials
Section 1407 proscribes the kidnaping of a federal officer
in the performance of his duties. It is identical to a provision
in S. 2572 as passed by the Senate in the 97th Congress and
amends the present kidnaping statute, 18 U.S.C. 1201, to cover
the abduction of a federal officer listed in 18 U.S.C. 1114 if
the crime is committed while the victim is engaged in his
official duties or on account of his official duties. Presently
only murder and assault on these persons are federal offenses and
kidnaping would not be covered unless the victim happened to be
201
transported in interstate ooramerce or the offense was committed
in an area of special federal jurisdiction. The amendment also
complements the amendments contained in the next section
of the bill which proscribes the murder, assault, or kidnaping of
family meir.bers of federal law enforcement officers and high level
federal officials if the offense is committed to impede or
retaliate against the federal officer or employee because of his
official duties.
Part G - Crimes Against Family Members of Federal Officials
Section 1^408 adds new section 115 to title 18 to make it a
federal offense to commit or threaten to commit murder, kidnaping
or assault upon a close relative of a federal judge, federal law
enforcement officer, or certain federal officials if the purpose
of the attack is to impede, interfere with, intimidate, or
retaliate against the federal employee on account of his official
duties. Since it would be an element of the new offense that the
act was done because of the official duties of the employee, the
section represents no real expansion of federal jurisdiction.
The scope of the offense is linked to acts done with a purpose to
obstruct or retaliate against federal officials because of their
job - related responsibilities -- acts for which a State or local
jurisdiction might lack the necessary deg^ree of interest to
vindicate the crime and for which federal jurisdiction is thus
appropriate .
The subjects of the new offense are family members —
spouse, parent, brother, sister, and other relatives of the
official who actually live in his household — of those govern-
ment employees and officers most likely to be subjected to
attacks by terrorists or other criminals in an attempt to
interfere with vital functions of the government and the adminis-
tration of justice, namely law enforcement officers, the
President, Vice President, Members of Congress, Cabinet officers,
federal judges including Supreme Court Justices, and person
protected by 18 U.S.C. 1 1 1 U . In part, this section complements
the provisions of P.L. 97-285, enacted in 1982 to protect Supreme
Court Justices and cabinet officers themselves by making attacks
on their persons federal crimes.
25-694 O - 84 - 14
202
Part H - Amendment of the Major Crimes Act
Section 1M09 amends the Major Crimes Act, 18 U.S.C. 1153,
which provides for federal jurisdiction over the serious inter-
personal crimes listed therein if committed by an Indian in the
Indian country. Presently 14 felony offenses are covered. The
section would be amended to add the offenses of involuntary
sodomy and maiming and to cover larceny only if the property
involved is worth in excess of $100.00. A crime committed by an
Indian against the person or property of another Indian may only
be prosecuted in federal court if it is listed in section 1153.
Other such interpersonal crimes must be prosecuted in tribal
court where the maximum punishment extends to six months'
imprisonment and a $500.00 fine. Such, punishment is not suffi-
cient for the offenses of maiming, traditionally regarded as
among the most serious of all crimes, or for involuntary sodomy,
which frequently involves a minor child as the victim. Con-
versely, tribal courts are fully capable of handling petty
larceny of amounts less than $100.00 and there is no need to
continue federal court jurisdiction over such an offense.
Part I - Destruction of Motor Vehicles
Section 1410 deals with the destruction of motor vehicles.
It is identical to a provision contained in S. 2572. It amends
the definition of "motor vehicle" in 18 U.S.C. 31. the section
that defines the term as it is applied in 18 U.S.C. 33 which
proscribes the destruction of motor vehicles. Presently "motor
vehicle" means any device used for commercial purposes on the
highways for the transportation of passengers or passengers and
property. It does not include vehicles used to transport only
car^o. Another statute which does cover the actual or attempted
i' truction of cargo moving in interstate commerce, 15 U.S.C.
1281, is restricted to the destruction of the cargo itself.
Thus, there is no federal coverage of a sniper who shoots at a
cargo truck since the truck carries only cargo which usually is
not destroyed. The amendment would close this gap by expanding
the definition of "motor vehicle" to include a device used for
carrying "passengers and property, or property or cargo."
203
Part J - Destruction of Energy Facilities
Section 1111 is also similar to a provision in S. 2572.
It adds a new section 1365 to title 18 to make it a federal crime
to knowingly and willfully damage the property of an energy
producing facility in an amount that exceeds $100,000 or to cause
any amount of damage which results in a significant interruption
or impairment 6f the functions of the facility. The penalty for
this offense may extend to ten years' imprisonment and a $50,000
fine. A punishment of up to five years' imprisonment and a
$25,000 fine is provided for the lesser included offense of
knowingly and willfully damaging the property of an energy
facility in an amount that exceeds $5,000. The term "energy
facility" is defined to include all types of electrical
generating plants, and other facilities involved in the
distribution, storage or transmission of electricity or other
types of energy. It does not, however, include a facility
subject to the jurisdiction of the Nuclear Regulatory Commission
since the damaging of such facilities is already proscribed by
12 U.S.C. 228^.
Part K - Assaults on Federal Officers
Section 1412 makes three amendments to section 1114 of title
18 which proscribes the killing of designated federal officers
and employees while engaged in, or on account of the performance
of their official duties.
First, section 1114 is amended to cover attempted murders.
Second, its coverage is expanded to include certain officers in
the Intelligence Community. Third, authority is given to the
Attorney General to designate by regulation other classes of
federal officers and employees for coverage under section 1114,'
an approach similar to that in several of the criminal code
revision bills. This would provide a workable mechanism for
extending federal protection to miscellaneous classes of persons
as changing needs dictate. 18 U.S.C. 1114 is also used to define
the scope of coverage of 18 U.S.C. Ill which sets out the offense
of assault against persons "designated in section 1114." Thus,
by virtue of section Ill's cross reference to section -11 14 the
204
second and third of the above amendments also operate to modify
and scope of the assault statute.
Part L - Escape from Custody Imposed by a Civil Commitment Order
Section 1413 is designed to make it an offense to escape
from confinement ordered pursuant to a court under the provisions
of 28 U.S.C. 1826. That statute empowers a judge to order
confined any person who, without just cause, refuses to testify
before a federal court or grand jury. Such confinement may
extend for the life of the court proceeding or the term of the
grand jury. Under present law persons who escape or attempt to
escape from confinement as a result of such an order cannot be
prosecuted. Moreover, such persons are on occasions already
serving federal prison terms when they refuse to testify. If a
federal prisoner is ordered civilly . committed the criminal
sentence is suspended for the duration of the civil contempt
sentence to ensure that the confinement is in addition to and
extends the time of the confinement for the criminal sentence.
See 28 C.F.R. 522.11(d). This in effect gives the prisoner a
"free shot" at making an escape while confined pursuant to
28 U.S.C. 1826. Since such confinement is often in a local jail
which may not be as secure as a federal prison, the incentive to
attempt an escape can be great. Recently an unsuccessful attempt
was made to prosecute under 18 U.S.C. 751 two persons in Arizona
confined in a local correctional center pursuant to 28 U.S.C.
1825, but the court ruled that the section was inapplicable.
Section 1413 of the bill would eliminate this loophole by adding
a new subsection (c) to 28 U.S.C. 1826 specifically proscribing
the escape, attempted escape, or rescue of a person confined
pursuant to that section. Moreover, the new subsection would
cover the escape, attempted escape, or rescue of certain danger-
ously insane persons who have been committed under the provisions
of the new 18 U.S.C. 4243 (added in Title V of the bill dealing
with the insanity defense) following an acquittal by reason of
insanity. Punishment of up to three years' imprisonment and a
$10,000 fine is authorized.
205
Part M - Extradition Reform
This part would create a new. Chapter 210 of Title 18 for
international extradition laws. Presently, both rendition, which
deals with the return of fugitives form one state of the Untied
States to another, and international extradition of fugitives are
dealt with in Chapter 209. Under our proposal. Chapter 209 is
left substantively unchanged as it pertains to rendition and
international extradition is dealt with separately in the new
Chapter 210.
The changes made in the extradition laws are designed to
update those laws which have proven inadequate in modern times.
Many of the statutes on extradition have been in force for over
100 years, some having had no significant alteration since 1882
while others have not been significantly amended since ISMS. The
marked increase in the number of extradition requests received
and made by the United States in recent years has revealed
problems with the present antiquated laws. Moreover, the
requests have generated a number of published court decisions on
constitutional and legal issues involved in international
extradition. While these judicial interpretations fill important
gaps in statutory law, we believe they should be codified in new
extradition legislation. Finally, the United States has con- .
eluded new extradition treaties with many foreign countries in
the past few years. The language of the present law is not
adequate to implement some of their provisions, and it therefore
impedes fulfillment by the United States of its international
obligations.
Accordingly, the new Chapter 210, which is virtually
identical to S. 1940 as passed by the Senate in the last Congress
on August 19, 1982, is intended to make the following improve-
ments in international extradition:
( 1 ) It permits the United States to secure a warrant for
the arrest of a foreign fugitive even though the fugitive's
whereabouts in the United States is unknown or even if he is not
in the United States. This warrant can then be entered into the
FBI's NCIC system so that if the fugitive attempts to enter the
United States or is apprehended in the United States for other
206
reasons, he can be identified and arrested immediately for
extradition to the requesting country.
(2) It provides a statutory procedure for waiver of
extradition. This feature protects a fugitive's rights while
facilitating his removal to the requesting country in instances
in which he is willing to voluntarily go to the requesting
country without a formal extradition hearing.
(3) It permits both a fugitive and the United States on
behalf of the requesting country to directly appeal adverse
decisions by an extradition court. Under present law a fugitive
can only attack an adverse decision through habeas corpus. The
only option available to the United States acting on behalf of a
requesting country is to refile the extradition complaint with
another magistrate . 3/
(4) It clarifies the applicable standards for bail at all
stages of an extradition case by adopting standards largely
derived from Federal court cases.
(5) It establishes clear statutory procedures and standards
applicable to all critical phases of the handling and litigation
of a foreign extradition request.
(6) It sets forth specific procedures for determination of
applicability of the political offense exception to extradition
and removes from that exception violent acts committed by
terrorists and others and those offenses involving international
drug trafficking.
(7) It limits access to United States courts in connection
with foreign extradition requests to cases initiated by the
Attorney General.
(8) It permits use of a summons instead of a warrant of
arrest in appropriate cases.
(9) It codifies the rights of a fugitive to legal repre-
sentation and to a speedy determination of an extradition
request .
(10) It simplifies and rationalizes the procedures for
authenticating documents for use in extradition proceedings.
3/ Matter of Mackin, 668 F.2d 122 (2 Cir. 1981)
207
(11) It ifacilitates temporary extradition of fugitives to
the United States.
I
TITLE XV — Serious Non-Violent Offenses
Title XV deals with serious, but non-violent crimes.
PART A - Product Tampering
Part A concerns product tampering, which is also the subject
of S. 216. Since we previously testified on S. 216 before the
full Committee, which has since favorably reported that bill, we
will not discuss the product tampering provision of S. 829-
PART B - Child Pornography
Another area addressed by Title XV is child pornography. The
bill amends the federal child pornography laws to facilitate the
prosecution of purveyors of material depicting children engaging
in sexually explicit conduct. The bill's dhild pornography
provision is based in part on New York v. Ferber , 102 S. Ct . 3346
(1982), in which the Supreme Court held that material showing
children engaging in sexually explicit conduct could be banned
even though the material might not meet the legal definition of
obscenity as set out in Miller v. California, 413 U.S. 15 (1973).
Ferber recognized that where children were involved the State had
a much greater interest in regulating pornography. Accordingly,
the bill amends 18 U.S.C. 2252 to cover the transportation,
shipment, receipt, sale, or distribution of material visually
depicting minors engaging in sexually explicit conduct whether or
not the conduct is legally obscene, as the law presently
requires. In addition, the section eliminates the present
requirement that the material must be sold or produced for
pecuniary profit. Experience has shown that a certain amount of
this type of material is produced and traded by "collectors"
rather than sold, but the harm to the children involved is, of
course, the same regardless of the motive.
208
PART C - Warning the Subject of a Search
Title XV provides for a new type of obstruction of justice
offense. Under section 2232 of title 18, it is a misdemeanor to
impair an authorized search by a law enforcement officer, such as
a search in the execution of a warrant, by destroying or removing
the property that is the object of the search. It is not,
however, an offense to warn a person that his property is about
to be the target of a search so that he can himself remove or
destroy it. Title XV fills this gap by making it unlawful to
give notice, or to attempt to give notice of a search in order to
prevent the authorized seizing of any property.
PART D - Program Fraud and Bribery
Another area covered by Title XV is fraud or bribery
concerning a program of a private organization or of a State or
local government that receives federal financial assistance.
Presently, 18 U.S.C. 665 makes theft or embezzlement by an
officer or employee of an agency receiving assistance under the
■Job Training Partnership Act a federal offense. However, there
is no statute of general applicability in this area, and thefts
from other organizations receiving federal financial assistance
can be prosecuted under 18 U.S.C. 641 only if it can be shown
that the money stolen is property of the United States. However,
in many cases title has passed to the State or local government
before the property is stolen, or the funds are so commingled by
the State or municipality that the federal character of the funds
cannot be shown. The program fraud and bribery provision of
Title XV is designed to remedy this situation and to protect
federal assistance programs by making it unlawful to steal,
embezzle, or fraudulently obtain property valued at $5,000 or
more from an organization that receives federal benefits or to
give or accept a bribe in connection with such an organization if
the matter involves $5,000 or more.
PART E - Counterfeiting of State and Corporate Securities
and Forging of Endorsements or Signatures on
United States Securities
T.itle XV makes it a federal crime to counterfeit or forge
State or corporate securities. Present law is inadequate to
209
combat widespread fraud schemes involving the use of counterfeit
corporate and State securities. The use of these securities as
collateral for loans and for other illegal purposes has a serious
detrimental effect on interstate commerce. Moreover, these
crimes commonly reach beyond State borders, and thus local
officials are generally unable to cope with thera.
Title XV also prohibits the forging of an endorsement or
signature on a Treasury check, bond, or other security of the
United States and the passing of such an obligation with intent
to defraud. The bill also makes it a felony to exchange or
receive, with knowledge of its false character, an obligaton of
the United States that has been stolen or bears a forged endorse-
ment .
At present, violations involving forgery of endorsement
or fraudulent negotiation of a Treasury check or bond or other
security of the United States are prosecuted under title 18,
section U95. However, because section U95 was not drafted to deal
with Treasury checks or bonds or other obligations of the United
States, many of the variations of offenses involved with the
forgery of obligations are not included under section 495. "
Similarly, other provisions of federal law are inadequate to
prevent the types of violations covered by this part of Title XV.
The proposal would make it possible to prosecute both
forgeries of endorsements and related crimes involving oblij-
gations of the United States under one section. It would greatly
assist the Secret Service, which has the primary jurisdiction to
investigate crimes involving obligations and securities of the
United States and which would have jurisdiction with regard to
the new offense.
PART F - Receipt of Stolen Bank Property
Title XV includes a provision which deals with the receipt
of stolen bank property. 18 U.S.C. 2113, proscribing bank
robbery and bank burglary, prohibits the receipt of property with
the knowledge that it was stolen from a bank. Cases under this
provision have held that the government must show that the
defendant had knowledge that the property he received was stolen
210
from a bank, not merely that he knew that it was stolen. The
offender's culpability, however, is not altered by his knowledge
or lack thereof as to the source of the stolen property, provided
he knew that it was stolen. Therefore, this requirement that the
defendant knew the property was stolen from a bank is unreason-
able, and the bill revises 18 U.S-.C. 2113(c) to eliminate it.
The government must still prove, however, that the defendant knew
the property he was receiving was stolen.
PART G - Bank Bribery
Title XV revises and brings up to date the statute dealing
with bribery of bank officers. Sections 215 and 216 of title 18
presently cover the receipt of commissions or gifts by bank
employees for procuring loans, but they are inadequate, unduly
complex, and obsolete in many respects. For example, these
sections do not cover bribery of employees of federally insured
credit unions, of member banks of the Federal Home Loan Bank
System, such as savings -and loan associations, or of bank holding
companies. The bill combines existing sections 215 and 216 to
bring up to date the list of covered institutions and to make
other needed improvements, including the prohibition of indirect
as well as direct payments and an increase in applicable -
penalties.
PART H - Bank Fraud
Title XV adds a new section to title 18 to provide for an
offense of defrauding financial institutions which are federally
chartered or insured. Present law covers the offenses of
embezzlement, robbery, larceny ,. burglary, and false statements
directed at these institutions. There is no similar statute
generally proscribing bank fraud, and federal prosecution of a
fraud directed at a bank may only be undertaken if the government
can prove the elements of some other offense, such as mail or
wire fraud, or making a false statement to a bank. The utility
of these statutes has been greatly diminished by Supreme Court
decisions precluding their applicability in certain cases and by
the increasing use of private courier services for collection
purposes in lieu of the mails. The bank fraud provision in
211
Title XV is designed to fill the gaps in present law and to
provide a straightforward way of preventing bank frauds.
PART I - Possession of Contraband in Prison
Under existing law, it is an offense to take contraband into
or out of a federal penal institution. This new provision would
fill a gap in current law by providing sanctions for the making,
possession or receipt of an object if the object may be used as
a means of facilitating an escape and is possessed contrary to
a rule or regulation established by prison officials. More serious
penalties are provided for possession of narcotics or a deadly weapon.
This provision will strengthen the ability of federal prison offi-
cials to maitain order in our correctional institutions.
- TITLE XVI - Miscellaneous Procedural Amenglments
PART A - Juvenile Prosecutions
Sections 1601-1503 make several amendments to chapter 403 of
title 18 concerning juvenile delinquency. In general they are
designed to make it easier to prosecute certain hard-core
juvenile offenders as adults. Similar provisions were contained
in S. 2572. Initially, section 1601 amends section 5031 to lower
from eighteen to seventeen the age at which an act that would be
considered a crime if committed by an adult is instead considered
to be only an act of juvenile delinquency.
Section 1602 contains an amendment to current law that was
recommended by the Attorney General's Task Force on Violent
Crime. The Task'Force report indicates, at page 83, that it
believes that the federal government "should have the opportunity
to prosecute those individuals be they adults or juveniles, who
violate federal law." Accordingly, section 1602 amends 18 U.S.C.
5032 to provide that the provision relating to deferral of
juvenile prosecutions to State authority does not apply to an
offense that is a felony if there is such a substantial federal
interest in the case or in the offense that- the exercise of
212
federal jurisdiction is warranted. Under present law, a juvenile
may not be federally prosecuted unless the Attorney General
certifies that there is no state jurisdiction over the offense or
that state programs and services for juveniles are not adequate.
Section 1602 also amends section 5032 to permit adult
prosecution of anyone over fourteen who is charged with a crime
of violence or an offense described in section 841, 952(a), 955,
or 959 of title 21, United States Code, relating to drug traf-
ficking. Under current law, a person may be charged as an adult
only if he is over 16 and is charged with an offense punishable
by ten years or more in prison, life imprisonment, or death.
Section 1603 amends section 5038 of title 18 to permit the
fingerprinting and photographing of a juvenile found guilty of an
act of juvenile delinquency that, if committed by an adult, would
be a felony crime of violence or an offense relating to drug
trafficking under section 841, 952(a), 955, or 959 of title 21.
Under current law, the name and picture of a juvenile cannot be
released in connection with any juvenile delinquency proceeding.
The result is that frequently an adult with an extensive record
will be sentenced as a first offender because the court is not
familiar with his juvenile criminal history. This amendment of
section 5038 is consistent with recommendation 58 of the Attorney
General's Task Force on Violent Crime.
PART B - Wiretap Amendments
Section 1604 amends section 2518(7) of title 18, which is
part of Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, to provide for emergency interceptions of wire or
oral communications in life endangering situations. A similar
provision was included in S. 2572, and in S. 1640 as passed by
the Senate on March 25, 1982.
Generally, Title III requires prior court authorization of
an interception of communications. However, 18 U.S.C. 2518(7)
permits an emergency interception without such prior authoriza-
tion under two types of emergency situations when there is not
time to obtain a court order: those involving either "conspira-
torial activities threatening the national security" or
"conspiratorial activities characteristic of organized- crime ."
213
The absence of similar specific authority to Intercept communica-
tions in emergency situations in which there Is an imminent
threat to human life has been of grave concern of law enforcement
authorities. For example, terrorists or other felons, while
holding hostages, may use an available telephone to arrange with
associates strategy to force action on their demands or a plan of
escape. Similarly, there may be situations in which plans for an
imminent murder are learned, but the location or identity of the
victim is unknown or law enforcement authorities are otherwise
unable to take measures to assure his safety. In such situa-
tions, the interception of communications may be necessary to
protect the lives of the hostages or victims, yet time for
obtaining a court order may not be available.
Section 1604 would amend 18 U.S.C. 2518(7) to provide the
needed authority to make an emergency interception in this type
of imminently life-threatening situation. It also amends section
2516 of title 18 to add the offenses of wire fraud, child
pornography, and violations of the currency transaction reporting
statute (31 U.S.C. 5322) to the list of offenses for which a
court ordered interception of a wire or oral communication is
authorized, and to ensure that such an interception may be used
in the investigation of the new witness tampering statutes, 18
U.S.C. 1512 and 1513, as added by P.L. 97-291.
PART C - Venue for Threat Offenses
Part C is designed to remove an unnecessarily restrictive
choice of venue presently placed on the government in cases
involving mailing or telephoning threatening communications.
Under 18 U.S.C. 3239, venue with respect to the offense of
threatening or mailing threats in violation of 18 U.S.C. 875,
875, or 877 lies only in the district where the threat was first
placed in motion such as the district in which the letter was
mailed or in which the call was made. This statute is an
exception to the general rule contained in 18 U.S.C. 3237 that an
offense involving the use of the mails or transportation in
interstate or foreign commerce is a continuing offense and may be
prosecuted in any district form, through, or into which the
commerce or mail matter moves.
214
It is difficult to discern any reason to treat venue in
threat cases differently from other continuing offenses, as a
matter of right. For example, there appears to be no reason to
mandate that a defendant who mailed a threat be tried where he
mailed it but allow the government to prosecute a defendant who
mailed an explosive in the district of mailing, the district of
receipt, or any district through which it passed. Hence, section
3239 is repealed.
In addition, section 3237 is reworded to make it clear that
the importation of an object or person into the United States is
a continuing offense and may be prosecuted in any district from,
through, or into which the person or object moves. Cases such as
United States v. Lember, 319 F. Supp. 249 (E.D. Va., 1970) have
limited venue in importation cases to the district of entry
rather than of final destination. This has created difficulties
as the witnesses are usually located in the place of destination.
PART D - Injunctions Against Fraud
Part D is designed to allow the Attorney General in appro-
priate cases to enjoin a violation of chapter 63 dealing with
wire fraud and mail fraud, and, as amended by section 1508 of
this bill, with bank fraud. Current law, except for the area of
securities fraud schemes, contains no injunction authority, thus
enabling the perpetrators of fraudulent enterprises to continue
to victimize the public even after the filing of criminal charges
and the obtaining of a conviction. The section adds a new
section 1345 to title 18 to allow the Attorney General to put a
speedy end to a fraud scheme by seeking an injunction in federal
district court whenever he determines he has received sufficient
evidence to initiate such an action. A similar provision was
contained in S. 1630 in the last Congress. Once the Attorney
General commences the case for injunction relief, the Federal
Rules of Civil Procedure apply except that if an indictment is
returned the more restrictive discovery rules of the Federal
Rules of criminal Procedure would become applicable.
215
PART E - Government Appeal of New Trial Orders
Section 1607 deals with the rights of the government to
appeal a decision of the district court to grant a new trial to a
convicted defendant. It is similar to a provision in S. I630.
Presently 18 U.S.C. 3731 allows an appeal by the government from
a decision, judgment, or order of a district court dismissing an
indictment or information except where prohibited by the Double
Jeopardy clause. There is no provision for a government appeal
of an order granting a new trial after a verdict or judgment,
although such an appeal would not violate the Double Jeopardy
clause. If the government prevails on appeal the original
verdict or judgment can simply be reinstated. This is a far
better way to correct an erroneous decision than a costly,
time-consuming new trial, the only alternative under present law.
Accordingly, Part E amends section 3731 to allow a government,
appeal after any decision, judgment or order in a district coUrt
granting a new trial.
PART F - Witness Security Program Improvements
This part of the bill makes several improvements in the
Witness Protection Program as presently set out in Title V of the
Organized Crime Control Act of 1970, P.L. 91-'^52. It adds a new
chapter 224 (sections 3521-3523) to title 18.
Initially, the new section 3521 expands the authority of th
Attorney General to provide witness protection in cases other
than those involving organized crime and broadens the definition
of witness to include potential witnesses, victims, and their
families. Moreover, the new section also gives the Attorney
General wider discretion to order the kinds of protective
measures which he deems necessary than are authorized under
present law. The Attorney General could provide official
documents to enable a protected person to establish a new
identity. He could provide housing and transportation of
household goods to a new location if a protected person must be
relocated. The Attorney General could also provide tax-free
subsistence payments in a sum established pursuant to regulations
for such time as he deems necessary. The Attorney General would
also be authorized to assist the relocated person in obtaining
e
216
employment. Finally, the Attorney General would be authorized,
in his discretion, to refuse to disclose to anyone the identity,
location, or other matter concerning a protected person. In
ruling on a possible disclosure, he would be authorized to
consider the danger that would result to a relocated or protected
person, the detriment a disclosure would cause to the general
effectiveness of the program, and, conversely, the possible
benefit to the public that might result from a disclosure.
One problem with the present Witness Protection Program that
has arisen occasionally concerns a citizen who has a civil cause
of action against a protected person but who cannot litigate
because he is unable to learn of the person's new identity or
location. Subsection 3521(c) is designed to deal with this issue
by seeking a balance between the usual policy of nondisclosure
and the right of an innocent person to litigate for civil
damages. The Attorney General is authorized to accept service or
process on a person and is required to make a reasonable effort
to serve the process on him at his last known address. If a
judgment is entered, the Attorney General must determine if the
relocated person has made reasonable efforts to comply with its
provisions. If the Attorney General concludes that such reason-
able efforts at compliance have not been made, he is granted
discretion to reveal to the plaintiff the defendant's location,
after giving appropriate weight to the danger to the protected
person that will be caused.
Title XVI, Part G, would clarify the change of venue provisions
contained in 18 U.S.C. 3237(b) which apply to certain tax offenses. Section
3237(b) is commonly referred to as the "hare venue option" because it
affords a defendant the right in certain tax prosecutions and under
specified circumstances to transfer the venue of the prosecution to the
district of his residence.
Section 3237(b) of Title 18 is an exception to 18 U.S.C. 3237(a), vhldh
permits, inter alia, prosecution of any offense involving use of the mails
in any district frran, through, or into which the mail matter involved moves.
Under 18 U.S.C. 3237(b) , a defendant has the cption to require prosecution
in the district where he resided at the time of the alleged offense "v*ere
an offense is described in section 7203 of the Internal Revenue Code of
217
1954, or where an offense involves use of the nails and is an offense
described in section 7201 or 7206(1) , (2) , or (5) of such Code * * * and
prosecution is begun in a judicial district other than the judicial district
in which the defendant resides * * *." a notion to treinsfer prosecution
must be filed within twenty days after arraignment of the defendant on an
indictiTEnt or information. The correct interpretation of Section 3237(b) is
of critical irtportance in prosecutions directed at abusive tax shelter and
tax protestor scheines, as well as other multi-defendant tax prosecutions.
Itie position of the Justice Departnent is that the here venue option is
available only in tax prosecutions brought in a district other than the
defendant's place of residence as a consequence or result of the use of the
mails by the defendant. Tlrte Court of Appeals for the Second Circuit
sustained the Government's interpretation in In re United States (Clemente) ,
608 F. 2d 76 (1979), cert, denied, 446 U.S. 908 (1980), holding that Section
3237 (b) is applicable at most only in situations i»tiere use of the mails is
the iDasis on which the prosecution seel^s to establish venue in a district
vtere the defendant does not reside. Thus, the court rejected the
contention that a defendant is entitled to change venue under Section
3237 (b) in a case in which the prosecution see)cs to establish venue on the
basis of criminal conduct wholly apart from the use of the mails. In
reaching its conclusion, the court pointed out that the mischief at which
Section 3237 (b) was directed was the prosecution of a taxpayer a great
distance fron his residence sinply because his tax return had been mailed to
a far distant office of the IRS. The court opined that the interpretation
of the statute suggested by the United States and adopted by the court
"fully meets the prcfclera that concerned the Congress." 608 F. 2d at 79.
In United States v. United States District Court (Solonon) , 693 F. 2d
68 (1982) , the Court of i^jpeals for the Ninth Circuit adopted a contrary
interpretation of Section 3237 (b) , finding that \4iere the mails are used as
part of the offense — such as to file tax returns — defendants who did not
reside in the district of prosecution were entitled to have the substantive
tax counts transferred to their district of residence even though venue was
not predicated on use of the mails. The indictment had been returned in the
Southern District of California (San Diego) against five defendants and the
court acknowledged that virtually all of the alleged criminal activity had
occurred in San Diego. TVro defendants who resided in the San Francisco Bay
25-694 0-84-15
218
area filed motions for transfer of venue under Section 3237 (b) and the grant
of those notions by the district court was sustained by the Ninth Circuit.
The Ninth Circuit felt that its reading of the statute was conpelled by
the plain language of Section 3237(b) , holding that (693 F. 2d at 70):
"I'Jhatever may have been the original intent of the bill's sponsors, the
language adopted to accomplish those goals is much broader than that which
would have covered the situations actually considered by Congress." Thus,
the venue was transferred inasmuch as the defendants had mailed the tax
returns at issue to the IRS, despite the fact that the transfer would
require a trial "in a remote district with no connection to the crime exc^t
the fortuity of the defendants' residence there." 693 F. 2d at 70.
Litigation on this issue is pending before the Court of J^peals for the
Fourth Circuit in United States v. District Court (Nardone) , No. 83-1149,
a bizarre case that might aptly be described as "a case without a home." In
Nardone three individual defendants were indicted in the Southern District
of \'fest Virginia for various offenses revolving aroxond ten fraudulent tax
shelters involving coal properties located in VIest Virginia. The defendant
Nardone resided in New York and filed a motion to transfer venue under
Section 3237 (b) . The district court granted the motion relying on reasoning
similar to that of the Solcanon decision and the case was transferred to the
Eastern District of New York. The New York court retransf erred the case to
Vfest Virginia, citing the Clemente decision. The Vfest Virginia court then
refused to delay the prosecution of Nardone 's two co-defendants and refused
to redocket the prosecution against Nardone. The result is that at the
present time Nardone cannot be prosecuted in either West Virginia or New
York. The United States has filed a petition for mandamus with the Fourth
Circuit, seeking revieiv of the decision to transfer the case to New York and
requesting that the Vfest Virginia court be oatpelled to hear the case.
Nardone illustrates the difficulties caused by a liberal interpretation
of Section 3237. The trial of Nardone 's two co-defendants comenced on
Decerrber 13, 1982, and continued xmtil January 5, 1983, with twenty-seven
witnesses testifying. When the ijnpasse over the place of prosecution of
Neirdone is resolved, a like amount of court tine and prosecutorial resources
will again be expended; another panel of twelve jurors along with alternates
will be called to serve; and the various witnesses will be' inconvenienced
again by being subpoenaed to testify a second time. Indeed, if the case is
ultimately transferred to Mew York, the inconvenience to witnesses required
to travel frcxn West Virginia to New York to give testimony will be great.
219
Finally, the scope of Section 3237(b) and of the Solonr>n decision is
before the Ninth Circuit in United States v. Dahlstrcn, Nos. 82-1137,
82-1138, 82-1141, 82-1142 and 82-1143. The case involves five defendants
who were convicted, following a jury trial in the Western District of
Washington, of offenses arising out of the promotion and sale in the State
of VJashington of fraudulent tax shelters in\'olving foreign trusts and sham
transactions. Ttte trial took 29 days over a two-month period; the evidence
consisted of testimony by 40 witnesses and the introduction into evidence of
over 250 exhibits (many of which were multi-document exhibits) . IVio of the
defendants, including the primary defendant Dahlstrom, filed motions under
Section 3237 (b) . Dahlstrcn was a resident of Texas and the other defendant
resident of Arizona. The district court, prior to the decision in Solonon,
denied the motions. These two defendants now contend that their convictions
should be overturned and their cases remanded for a transfer of venue and
retrial in Texas and Arizona respectively. The United States in urging that
the convictions be sustained, contends that Solomon is distinguishable on
the facts and alternatively suggests that if Solomon would require reversal,
the natter should be heard by the Ninth Circuit en banc.
The facts of the Solcmon, Nardone and Dahlstrcm cases are conpelling
evidence that whatever the correct interpretation of current Section
3237 (b) , legislation is needed to expressly oonfine the home venue option to
the situation which prcnpted its enactment — a prosecution in which venue is
laid in a district where the defendant does not reside solely on the basis
of the receipt by the IRS of materials transmitted by mail. Section 3237(b)
was intended to be a shield against the power of the Govemmsnt to prosecute
a defendant in a district remote frcm his residence on the basis of a
mailing to a distant office of the IRS. It is not and should not be a sword
enabling a taxpayer to transfer prosecution to a place remote frcm the
primary criminal acts sinply on the fortuity that the defendant resided
there.
The Section 3237 (b) issue has arisen primarily in nulti-defendant
prosecutions of persons proroting fraudulent tax shelters. The Justice
Department cind the IRS have given high priority to these JcLnds of
prosecutions because of concerns about the adverse iirpact of these criminal
220
cictivities on tax oarpliance generally. The number of prosecutions
involving tax shelters has increased iji recent years. There there has been,
however, congressional concern that a greater nuntoer of such prosecutions
have not been initiated. See generally. House Hearings before the Subcomm.
on Oversight of the Ifouse Cctnn. on Ways and fteans, 97th Cong. , 2d Sess.
(1982).
Prosecutions of tax shelter cases are difficult in part because the
transactions in these cases generally are extrerrely ccitplex. The true facts
are disguised and funds raust often be traced through multiple corporations,
partnerships or trusts. The witnesses and documentation may be scattered
throughout the United States and even overseas, and each prosecution
involves a major conriitraent and outlay of resources by the Justice
Department, the IRS and the courts. Enactment of the suggested clarifi-
cation to Section 3237 (b) would siirply ensure that the public need not bear ■
the cost of two (or in cases like Dahlstrcm three or possibly even more)
substantially similar trials arising out of criminal actions taken by
persons acting in concert. The amendnent also would have the beneficial
effect of avoiding substantial inconvenience to members of the public
necessarily called as witnesses in such prosecutions. The resources of our
prosecutors, investigators and the courts are much too scarce to be
squandered unnecessarily by multiple trials of the prcnoters of these tax
illegal tax schemes.
COMPREHENSIVE CRIME CONTROL ACT OF 1983
WEDNESDAY, MAY 11, 1983
U.S. Senate,
Subcommittee on Criminal Law,
Committee on the Judiciary,
Washington, D.C.
The subcommittee met at 10:03 a.m., in room 226, Dirksen
Senate Office Building, Hon. Paul Laxalt (chairman of the subcom-
mittee) presiding.
Present: Senator Specter.
Staff present: John F. Nash, Jr., chief counsel and staff director;
William Miller, general counsel; Beverly McKittrick, majority
counsel; and Susan Fanning, chief clerk.
OPENING STATEMENT OF HON. PAUL LAXALT, A U.S. SENATOR
FROM THE STATE OF NEVADA, CHAIRMAN, SUBCOMMITTEE ON
CRIMINAL LAW
Senator Laxalt. All right, the subcommittee will be in order.
This is the second of the scheduled hearings on Senate bill 829,
the Comprehensive Crime Control Act of 1983. Last week, this sub-
committee heard from the Attorney General of the United States
and from other distinguished members of the Department of Jus-
tice and the Treasury Department, who testified in support of the
bill from the point of view of Federal law enforcement.
Today we are honored to receive testimony from eminent offi-
cials representing the perspective of State and local law enforce-
ment officers. Gov. Charles Robb of Virginia is the chairman of the
Committee on Criminal Justice and Public Protection of the Na-
tional Governors' Association. LeRoy Zimmerman, the attorney
general of the Commonwealth of Pennsylvania, is the chairman of
the Criminal Law and Law Enforcement Subcommittee of the Na-
tional Association of Attorneys General. And District Attorney
Edwin Miller of San Diego County, Calif, is the president-elect of
the National District Attorneys Association.
The appearance of these gentlemen before the subcommittee
today serves to remind us that the continuing battle against crime
is fought primarily by local and State officers. The range of Federal
criminal law jurisdiction is narrow compared to the jurisdiction of
the States, and this is as it should be. The Founders of our Repub-
lic intended the States to have this responsibility, and our Consti-
tution clearly reflects that intent.
Accordingly, the basic purpose of Senate bill 829 is to put the
Federal criminal justice system in order, not to make unwarranted
intrusions into the areas of State and local law enforcement. How-
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ever, the extensive reforms included in S. 829 and the proposals in
the bill to strengthen our ability to fight organized crime and to
put the illegal drug industry out of business are bound to have a
significant effect on State and local law enforcement efforts. For
this reason, it is important to have the advice and counsel of the
organizations represented by these distinguished witnesses before
us.
[The prepared statement submitted by Senator Biden follows:]
Prepared Statement of Senator Joseph R. Biden, Jr.
I would like to welcome today the prominent government officials who will be tes-
tifying on these important criminal justice initiatives. As elected officials I am sure
they have heard, as I have, that the citizens of this country want the criminal jus-
tice system to work better than it has to date. They want an effective, efficient and
fair system to punish law breakers and to protect them and their families from the
personal and financial hardships that result from crime.
However, if we are to ever restore the publics' confidence in our commitment to
crime and drug control then we can't continue to rhetorically call for wars on crime
or drugs. We have done what in the past and the public has seen us lose these wars
built on rhetoric.
As the ranking minority member of the Judiciary Committee I found the Presi-
dents proposed cuts to law enforcement in 1981 to be inconsistent with his state-
ments for strong crime control measures. Proposals to eliminate 434 positions in
DEA, eliminate all justice assistance programs to State and local agencies, close all
State and local drug task forces, freeze funds for undercover investigations do not
demonstrate a commitment to solving an unacceptable crime and drug abuse prob-
lem. Had it not been for the Governments, State attorney generals, law enforcement
associations, and the U.S. Congress those budget cuts would have had drastic impact
on the Federal, State, and local response to crime and severely damaged the morale
of many hard working law enforcement people.
I believe we are all on a new course this year in which the Congress and now the
administration recognizes you can't talk about a serious effort to make in roads in
the crime and drug problem without committing resources.
I sincerely believe that the President has begun to commit the resources to im-
prove our law enforcement agencies. The increases in budgets for Federal agencies,
this year, the start up of the task forces and support for assistance funds for State
and local agencies demonstrate a willingness to improve our law enforcement agen-
cies.
With respect to the administration's bill before us is an example of apparently
well-intentioned legislation that has aroused a great deal of criticism — with one
very important difference. Most of this bill has been overwhelmingly approved by
my colleagues in the Senate and a substantial portion was already proved by the
House. In addition, last Congress the Senate and House Judiciary Committee mem-
bers made substantial progress in agreeing upon bail and sentencing reform legisla-
tion— so much progress that it was only the press of time at the end of the Congress
that prevented those measures from going to the President as well. Even the Presi-
dent's veto of the bipartisan crime bill was accompanied by a strong statement of
support for many of its provisions.
All of us must appreciate the necessity of once again passing those improvements
in current law on which agreement has already been reached. In addition, it is clear
that the sooner we pass bail and sentencing legislation, the greater the likelihood
that our colleagues in the House will also act on those reforms.
By this process we are virtually assured of enactment into law of a significant
criminal law reform package of legislation in the 98th Congress.
I strongly believe, however, that the administration's proposal may delay or even
prevented that result. That bill, the Comprehensive Crime Control Act of 1983 (S.
829) contains provisions which were not in the package which passed the Senate 95
to 1. They were not in it for a very good reason — we were unable to reach agree-
ment. Some of those provisions — most notably changes in habeas corpus and in the
exlusionary rule were not even reported by the Judiciary Committee, despite many
months of effort. And, we all know that any proposal to establish Federal death pen-
alty procedures faces a certain filibuster. Last Congress proponents of those bills
recognized that the only way to pass a comprehensive package of legislation was by
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moving controversial bills separately. That decision was correct last Congress and it
is correct this Congress.
Senator Laxalt. Gentlemen, I welcome you to the Subcommittee
on Criminal Law, and I look forward to hearing your comments
and evaluations of the crime package.
Our first witness will be Gov. Charles Robb of the Common-
wealth of Virginia.
Governor, we are delighted to have you with us this morning.
You may proceed in any fashion that you wish.
STATEMENT OF HON. CHARLES S. ROBB, GOVERNOR, COMMON-
WEALTH OF VIRGINIA, ON BEHALF OF NATIONAL GOVERNORS'
ASSOCIATION, ACCOMPANIED BY RICHARD N. HARRIS, DIREC-
TOR, DEPARTMENT OF CRIMINAL JUSTICE SERVICES, COM-
MONWEALTH OF VIRGINIA; AND NOLAN E. JONES, STAFF DI-
RECTOR, COMMITTEE ON CRIMINAL JUSTICE AND PUBLIC PRO-
TECTION, NATIONAL GOVERNORS' ASSOCIATION
Governor Robb. Thank you, Mr. Chairman. I am delighted to be
here and I appreciate very much the invitation to appear before
you principally as the representative of the National Governors'
Association, as you indicated, as chairman of the Committee on
Criminal Justice and Public Protection, but also I will have a few
comments that relate to some of the things that we are doing in
my own State and others.
I think that the testimony that I have given to you and members
of the committee in written form pretty thoroughly addresses the
policy positions that the Nation's Governors have enacted formally,
and I will be happy to elaborate on any of those if you think it is
appropriate, but I will not cause you to have to sit through an ex-
tensive reading of that testimony at this time, in accordance with
the expressed wishes of your very kind invitation.
Senator Laxalt. We appreciate your consideration, Governor.
Your full statement will be filed in the record for the benefit of
my colleagues. You may summarize it, characterize it in any fash-
ion that you wish.
Governor Robb. Thank you.
Obviously the Nation's Governors, the States, and I am sure that
the testimony of the two distinguished representatives of the State
attorneys general and district attorneys will hit on a number of the
same points, but we are very obviously concerned and we applaud
the effort of the Federal Government to address this problem at
the Federal level. And I will say, try to suggest some of the areas
where we think it is particularly important as it interacts with
State policy and some of the things that we are concerned about.
The simple statistics that compel all of us to look at this problem
in a much more serious way, just a couple of them that most of us
are familiar with, but if every 2.4 seconds we have a crime, obvi-
ously we have a pretty serious problem. The serious crimes of rape,
theft, robbery and assault affecting some 25 million households
each year and some 68 percent of our American public are con-
cerned that crime is on the rise in this country. And I think that
this gives some indication of the degree of public concern to which
we are all responding in one way or another.
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Specifically the areas of the — Senate bill 829 — maybe I should di-
gress at first and simply say that there is nothing that the Nation's
Governors, in terms of their formal policy positions, have seen in
that legislation with which they specifically disagree in any sub-
stantive way. There are a number of areas that because of the con-
cepts of federalism that we would not have addressed in our policy,
but I would like to talk then about some of the areas where there
is specific overlap in terms of some of the concerns, probably the
most important area to the States at this point is the old question
of narcotics enforcement and illegal drug trafficking.
We had a symposium, as a matter of fact, that led off the most
recent meeting of the Nation's Governors at the end of February in
which the Attorney General, William French Smith, and the Direc-
tor of the FBI, Judge Webster, appeared with several of the Na-
tion's Governors talking about this specific problem. And as a
matter of fact, I would like to make a copy of the proceedings of
that available to you and to other members of the subcommittee
and to any others that might be desirous of reviewing some of the
testimony that was taken in that particular proceeding.
Specifically we are concerned about the need for increased educa-
tion efforts. We are concerned about the need to intensify interdic-
tion efforts. We are particularly concerned in this area with the in-
ternational scope of the problem as discussed in some detail in this
particular booklet, which I will leave with you when I depart.
We recognize the international scope of the problem, the source
question which is clearly beyond the realm of the States to combat,
and we rely almost exclusively on the Federal Government in that
particular area. We applaud efforts that are designed to interdict
that traffic at the source which are clearly outside of our own
areas. We have increased our own State surveillance in significant
ways. Virginia, for instance, we have authorized — I have recently
signed an executive order authorizing the National Guard to in-
crease surveillance activities, although they have no specific en-
forcement powers. Our State police, I believe most recent figures
indicate some 81 members of that force are assigned specifically to
this particular area. So it is a problem that all of us recognize and
all of us are dealing with in one form or another. But the use of
the military, we think, is a valuable component in this entire ap-
proach.
The need for information and data that relate to the drug en-
forcement question is one that we share across the board. We rec-
ognize the sensitive nature of intelligence and information that is
developed in the drug suppression activities and the reluctance on
the part of agencies, even within the same strata of government,
much less across State, local, and Federal boundaries to release in-
formation that might compromise the integrity of a particular in-
vestigation. At the same time, we think that there is a clear need
for as much centralized intelligence as possible, and we are pleased
that this is addressed.
There is a need for obviously a concerted street enforcement ac-
tivity, and much of this is clearly a State and local responsibility.
And the States are addressing this in a variety of different ways.
We believe that there is need in this particular area for standard-
ized legislation and the Criminal Justice and Public Protection
225
Committee is currently in the process of putting together a pro-
posed uniform package that would permit all of the States to take
a look at what other States are doing so that the major traffickers
will not be able to pick and choose between points of entry and the
various differences in State law in order to carry out their activity.
We have noticed, particularly in the Southern States, which have
been hardest hit by the importation of drugs, that when one State
increases an activity, frequently it will tend to divert that transpor-
tation into other States. And we have had a meeting with the
Southern Governors alone, simply to talk about joint efforts to ad-
dress this problem, and we will continue to work in that particular
area.
Clearly there is a need for coordination of the efforts of the agen-
cies at all levels, and we are pleased that that is addressed, and the
Governors will continue to look at that particular question.
The question of forfeiture reform is one that we find particularly
appealing because it seems to me that the only way we are going to
have a major impact is to cripple economically those who engage in
drug trafficking, any forfeitures, and it is addressed in both this
bill and, I think, slightly to a different extent in Senate bill 830;
that would remove and penalize those who traffic for any convey-
ance that is related to it, whether it is planes, boats, cars, the pro-
ceeds of illegal drug trafficking and things of that nature seems to
us to be a step in the right direction.
Florida has instituted a program that began in July 1982, and by
May 1983 some $658,000 already had been deposited in a Florida
forfeiture fund. Virginia law took effect last July. Statistics are not
yet available in that particular area, but the concept of requiring
forfeiture is one that we find is effective and certainly pushes in
the right direction.
Another area that is not perhaps as critical in terms of your
overall consideration of the bill, but one that the States feel is par-
ticularly appropriate, has to do with the surplus property that
might be available for penal institutions, some 39 States at this
point are under court order to reduce overcrowding in one form or
another. The prison population continues to increase. At the end of
1982 alone, there were some 412,303 inmates in Federal and State
prisons, and that represented an annual increase of some 43,000. So
it is a problem that does not go away. It becomes more difficult to
solve.
In Virginia, like many other States, we are in the process of con-
structing additional prison facilities, and we have to plan some 8 to
10 years down the road in terms of the demands on our system,
and most other States have the same problem. And to the extent
that Federal properties, surplus Federal properties are available to
help in some of the capital costs, this can be a very important pro-
vision for us.
Senator Laxalt. While you are talking about facilities, is there
any movement in Virginia or some of these other States in connec-
tion with private enterprise perhaps getting into the field where
we have had some increase to that effect?
Governor Robb. Mr. Chairman, when you say in private enter-
prise
Senator Laxalt. Yes.
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Governor Robb. To run as a contractor?
Senator Laxalt. No, no, not operationally. Simply to provide the
facility and lease them back to the State or the local subdivision, or
perhaps even to the Federal Government.
Governor Robb. Mr. Chairman, I cannot cite you any specific ex-
ample. In Virginia the private sector is very much concerned about
the problem and are assisting in a variety of different ways. But in
terms of specifically making property available, I do not have any
current evidence that I can cite to you. I will check and if we have
anything of that nature, either here or elsewhere, I will be happy
to provide those — that kind of information for you.
In terms of the sentencing reform effort, although some of the
efforts that are addressed go beyond the scope of State inquiry, we
are particularly pleased with the increased emphasis on sentences
for drug violators, those that commit crimes using a dangerous
weapon, and those that involve serious bodily injury or where a
death results in those particular crimes. I think most of the States
in their own treatment of the same types of offenses have in-
creased the penalties, in some cases have increased mandatory pen-
alties, particularly for commission of crimes with firearms , and we
certainly applaud that particular approach.
Senator Laxalt. If the Governor would yield.
While we are talking about sentencing, have you given any par-
ticular thought about who should determine the sentencing guide-
lines, whether they should be judges or criminal lawyers?
Governor Robb. We are in the process right now in Virginia, the
National Governors' Association has not specifically addressed the
question in Virginia. I have appointed a sentencing task force
which consists of legislators, judges, corrections officials, a variety
of others, who have professional input, and a task force report is
going to be available toward the end of this year to provide us with
this kind of guidance.
I think in terms of any personal response to that question, I
would prefer to wait until this committee completes its work. I am
not aware of any NGA policy position that would reflect specifical-
ly on that question. But if, subsequently, I find that we have any-
thing that addresses it, I will send it in.
Senator Laxalt. As you move along, we would appreciate very
much being advised. The mix that we have in connection with a
group that is finally going to deal with this is going to be critical
obviously.
Governor Robb. Again I will be happy to try to provide any addi-
tional input into that area that might be appropriate.
There is another area that we find particularly appealing that
has to do with the habeas corpus reform. Clearly, in order to in-
crease public confidence in the system of criminal justice, there has
to be some degree of finality to the process. The concept of both
finality and swiftness, we happen to think, are important elements
in the entire process. And as you know, there has been quite a bit
of concern at the State level about the habeas corpus procedures
that permit appeals in many cases, in most cases to be honest, that
are frivolous in nature to proliferate and to extend the period of
time until the final conclusion of the carrying out of the sentence.
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Justice Powell, I noted, addressed that topic, I believe it was in
Florida. I do not recall where the meeting took place but I remem-
ber reading in the last few days in connection specifically with the
capital punishment, but the general concern remains that we
manage to protract those appeals to the point that the certainty of
that sentence or certainly the swiftness provide very little, if any,
real deterrent. It is a measure — it is a major concern for all of us.
Senator Laxalt. Do you see any need for the Feds to obtain any
kind of jurisdiction over State prisons in the whole area of habeas
corpus reform or otherwise?
Governor Robb. Well, I think to the extent that the Federal
courts continue to protect the due process, and that portion seems
to me to be reasonable as is consistent with the Governors' posi-
tion. We would suggest that a time limit for raising any question,
the one year is particularly appropriate and we would suggest that
a determination as to factual questions as long as they have been
fairly and reasonably ascertained by the State courts, that the Fed-
eral system accord appropriate deference to the State courts in
that area. I think that as an ultimate protection against the abso-
lute violation of individual rights, we would not object to that rule
but it ought, in our judgment, be considerably more limited and
the proposals, as I have had an opportunity to review them, cer-
tainly move in that direction and are consistent with the policy
that we are advocating.
Senator Laxalt. I rather imagine we would have vigorous consti-
tutional challenges, too, if we attempted to exclude ourselves com-
pletely from that area.
Governor Robe. I think there is no doubt that there would be
constitutional challenges. It may be that the Attorney General or
the district attorney may have some additional thoughts on that
area.
Senator - Laxalt. So your thought is, and it coincides with the
thought of the subcommittee, that we should certainly shorten the
process in some fashion?
Governor Robb. Absolutely. And almost anything that is done
consistent with deference to due process that we are all concerned
about would make sense to us. There is too much evidence that the
failure to provide swift and certain punishment contributes to the
increase in criminal activity because there are too many, particu-
larly those who are referred to from time to time as career crimi-
nals, that simply know that the system is not going to cause them
to have to pay the penalty for violating our laws and that that can
be protracted and dragged out in such a way that it becomes
almost a mockery in some cases.
Senator Laxalt. We are close to that already, are we not?
Governor Robb. In another area, Justice assistance, generally we
think that there is clearly a Federal role in providing leadership,
research, technical assistance, and training coordination of the
Federal and State interests. We like the block grant approach. I do
not think it would come as any surprise that the Nation's Gover-
nors and most of the States as a general policy matter, assuming
that the same degree of funding is available, I think that a number
of these areas that have a particular State nexus can and ought to
be administered at the State level. And consequently I think we
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are consistent in our desire to follow up and support efforts to
create those block grants where the controls and the flexibility
hopefully is increased, where the States is 50 individual laborato-
ries for experimentation in a variety of areas, it is important in our
judgment, and also hopefully where the same general level of fund-
ing that might be available, there has been some evidence in other
programs that — programs that were envisioned as approximately
90-percent funded, in the categorical grants, when transferred to a
block grant, end up being funded at considerably less and the
States were less enamored of the prospect of taking over those pro-
grams simply because the expectations remained high and the effi-
ciencies of the States could effect themselves, were diminished by
the fact that the funding was cut considerably more than it had
been in other areas. That does not relate so much to this, but
simply a general statement that most Governors do not hestiate to
articulate whenever they get a chance.
Senator Laxalt. We noticed last year in the federalism effort we
underwent that this was a principal concern which we heard about
not only from Governors but from mayors — the assumption would
be one of resources.
Governor Robb. There were a number of elements about the
whole question of federalism and New Federalism that the Gover-
nors found very attractive. And if we can find an appropriate
forum to continue that discussion, we would certainly like to do so.
Mr. Chairman, I will conclude. I think that those are the areas
that impact specifically on the States, those areas in which NGA
policy positions have already been taken, that I think I could in
good conscience represent to you and the other members of the
subcommittee reflect the consensus of the Nation's Governors. Ob-
viously there are individual opinions on a variety of other areas
and, as I say, I am not aware specifically of anything in the pro-
posed legislation that goes against the grain of any NGA position.
And specifically I think that the Nation's Governors, although they
might want to take issue on the basis of personal experience or
State experience, with one or more of the specific provisions in the
legislation, would applaud the overall effort, and be very pleased to
be generally supportive.
Senator Laxalt. Thank you very much. Governor.
I have just a couple of questions for you because I know you are
operating on a fast track.
Will the passage of major Federal criminal reform legislation, in
your opinion, encourage the States to adopt similar reforms?
Governor Robb. The answer I would say is yes, that the States
are already moving in this direction, as I have indicated, and in
some areas, particularly drug enforcement, we are preparing to
provide guidelines that might assist States in addressing this par-
ticular question. But the answer is yes.
Senator Laxalt. I would assume NGA would be out in front to
accomplish that result because if we can have a uniform applica-
tion for the reasons that you mentioned, we would benefit.
Governor Robb. NGA would be very pleased to work with you
and your committee and Congress and the President and various
other associations, the Conference of State Legislators, the attor-
neys general, district attorneys and all others who are concerned
229
about this particular problem. We would like very much to have an
opportunity to cooperate on this area as much as we can.
Senator Laxalt. You mentioned the problem with drug traffick-
ers. Of course, this is one of the principal problems that we con-
front. It is one of the main focuses, really, of this legislation.
Do the provisions of the bail reform section of Senate bill 829 suf-
ficiently address the problem?
Governor Robb. We are very pleased with the bail reform provi-
sions. To be perfectly honest, we attempted in Virginia to provide
some specific guidelines in bail reform and we have not yet been
successful. We are going to continue to pursue that course.
Some of the guidelines that are incorporated in S. 829 are more
specific and, to that extent, we find it extremely helpful.
Senator Laxalt. What kind of problems are you running into?
Are they mainly political?
Governor Robb. I would say that we are very fortunate in Virgin-
ia to have some distinguished representatives of the defense bar
that served in our general assembly and they are very persuasive
on some of these issues. I would not characterize the entire argu-
ment that way, but
Senator Laxalt. I know what you are saying.
Governor Robb. But I think you follow my reasoning.
Senator Laxalt. Does NGA favor a particular Justice assistance
proposal? You indicated that generally you are in support of the
concept. Do you have any specific proposal?
Governor Robb. I do not have anything specific in terms of policy
at this point.
I will be happy to follow up with any additional areas.
Senator Laxalt. As we move along
Governor Robb. We will be happy to
Senator Laxalt. If you see anything more specific than has gen-
erally been outlined, please let us hear from you.
Governor Robb. We would be delighted.
Again there are some statistics that indicate that some of the as-
sistance in the past has provided the impetus for States to continue
some of the funding and some of the things that they have done on
their own to a fairly significant degree. And so assistance in some
of the things that you have done in this area can be very, very
helpful as far as we are concerned.
Senator Laxalt. Now, finally, in your statement — this deals with
the problem of insanity — in your statement you refer to the verdict
of guilty but mentally ill which some States have adopted.
Does NGA or you. Governor, personally favor such an alterna-
tive?
Governor Robb. I would have to speak personally on this particu-
lar question. NGA has not formally addressed that particular topic.
I do support an approach which is quite similar. As a matter of
fact, we proposed as a part of the crime package that the attorney
general and I jointly introduce in the 1982 session of the general
assembly, prior to the notoriety that was associated with that par-
ticular approach and the shooting of the President, and the nation-
al concern that was raised, it was set aside at that time, it was con-
sidered and withdrawn in the 1983 session of the general assembly.
I recognized some of the problems in that area but personally the
230
approach makes sense as long as the concern is related to whether
or not the individual who is being tried was competent to under-
stand the seriousness or the gravity of the offense at the time and
to provide some mechanism for dealing with the punishment that
flows from a decision that was — from an individual that was capa-
ble of making that kind of decision.
So, personally, we like the movement in that direction, but I
have to tell you on the basis of our own experience that we have
not been successful yet in Virginia in enacting that legislation.
Senator Laxalt. Finally, what do you think are the advantages
or disadvantages over a verdict of not guilty by reason of insanity
when that is coupled with automatic commitment procedures to
assure immediate mental examination?
Governor Robb. I am sorry, I am not sure that I got it.
Senator Laxalt. I was referring back to the verdict of guilty but
mentally ill. What are its advantages or disadvantages over a ver-
dict of not guilty by reason of insanity when it is coupled — when
the verdict is coupled with automatic commitment procedures to
ensure automatic mental examination and treatment?
Governor Robb. I am not sure that I can address that question
with the specificity that I think would be helpful.
Well, let me — it is sufficiently technical that I would be winging
it, I am afraid, to try to compare the two at this point.
I will be happy to provide some additional comment.
Clearly the comments that I already made indicate which side
we fall on, at least I do personally. I will be happy to follow up and
send you some additional information in that area.
Senator Laxalt. Thank you very much. We will be moving and
exploring into this whole general area as we move along anyway.
Well, Governor, we certainly thank you for coming in, and I
might say as far as the members of the subcommittee, and certain-
ly the chairman here, we recognize that we on this level cannot do
it alone. Most of the work has to be done on the State and local
level, and I speak as a former Governor and a former prosecutor.
Governor Robb. We recognize that part of your background, Mr.
Chairman, which encourages us.
If you can convey some of those same thoughts not only to the
members of the subcommittee but to some of your other colleagues
in the Senate and the House in terms of the appropriateness of the
Federal, State and local responsibilities, you will find some very
willing and eager advocates to support your position in the State
Capitals around the country.
Senator Laxalt. Very well. That is comforting to know. And as
far as the subcommittee is concerned, I probably experience the
same general problems that you have in the Assembly from time-
to-time. Thank you.
Governor Robb. Further deponent sayeth not.
Senator Laxalt. Thank you very kindly.
Governor Robb. Thank you, Mr. Chairman.
Senator Laxalt. And we will stay in touch.
Governor Robb. Thank you.
Senator Laxalt. All right.
[The prepared statement and additional material submitted by
Governor Robb follow:]
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Prepared Statement of Governor Charles S. Robb
Good Morning.
Mr. Chairman, and distinguished members of the Subcommittee.
\ am pleased to have the opportunity to appear before you today to discuss S.S29,
the Comprehensive Crime Control Act of 19S3 and its impact on the states. I appear
before you today in my capacity as chairman of the Committee on Criminal Justice and
Public Protection of the National Governors' Association. The views that I share with
you today come from the policies adopted by the National Governors' Association.
Mr. Chairman, as you and the members of this Subcommittee know, statecraft is
at best an imperfect science. As the Congress begins work on a major legislative
package to help reduce crime in our country, we received the welcome news that the
crime rate has gone down for the first time since 1977. It's not clear that word of these
hearings produced that desired result, but it's a thought worth consideration.
While we may not have the exact answer to why the crime rate has dropped for
the first time since 1977, there are several things that we do know. We know that in 1981:
— A crime was committed every lA seconds in our country;
— Nearly 25 million households were victimized by rape, robbery, theft or assault;
— More than 20 percent of all households were victims of at least one larceny; and
— Finally, we know that almost one-half of our citizens feel unsafe to walk down the
street in their own neighborhoods, according to a Harris poll.
In short, crime is still robbing this country of the things we consider most
important. It is claiming the lives of our people, invading the sanctity of our homes, and
draining billions of tax dollars. Worst of all, crime is stealing our peace of mind —
making us a nation of people constantly looking over our shoulder instead of looking
ahead to where we should be going.
I don't know if this legislation will help recapture what we have lost. I do believe
that S.829, the Comprehensive Crime Control Act of 1983, will provide important
leadership to states in several areas — using the states as a laboratory for testing new
and innovative ideas.
In my testimony today, I will highlight those areas of special interest to NGA and
discuss the overall impact of this legislation on the states. I will also present some of
the initiatives that we have taken in Virginia to deal with crime, and describe initiatives
of other states.
232
BAIL REFORM
The bail reform in provision S.829 would permit the court to consider danger to
the community in making bail determination. Unfortunately, present law would allow a
dangerous offender to go free if his past record demonstrates an insurance of court
appearance.
The National Governors' Association supports reforming the bail system to allow
"danger to the community" to be a consideration for releasing an individual. Such reform
is directly responsive to the one critical factor in the public fear of crime: that the
system upon which it is depending for protection is unconcerned with the possible
consequences of its release decisions. We also feel that special consideration should be
given to constraints on the release of individuals with prior drug, firearms or other felony
convictions. Too often manufacturers and traffickers of illicit drugs are released on bail
only to flee the country or the jurisdiction in which they are arrested. According to
Justice Department estimates, there are approximately 3,000 drug dealers in flight from
federal warrants.
We in the Commonwealth continue to grapple with the bail reform issue. Virginia
law permits the court's consideration of an accused person's possible danger to himself
and the public when granting bail. But there are no criteria to be used in making that
decision. During the 1982 session of the General Assembly, I offered legislation
establishing criteria for determining the danger to the public. These criteria included
previous violent behavior by the acoMcdt use of firearms, threatening witnesses,
narcotics addiction, multiple prior convictions and probationary or parole status. The
measure failed to pass the legislature, but we will continue to wrestle with this issue.
In November 1982, Florida voters approved a ballot measure permitting judges to
use discretion in setting bail in certain cases. The measure is aimed at drug traffickers,
especially where large sums of money are involved. Judges are permitted to deny bail
when they determine that a defendant would be likely to "jump" bail and leave the
country.
SENTENCING REFORM
The National Governors' Association supports an increase in penalties for large-
scale importation of drugs. NGA also supports tough penalties where violence is
threatened, a dangerous weapon is used or serious bodDy injury or death results. We
believe that sentences must be e^iilehh wid retjonai.
233
In Virginia we are studying what, if anything, we should do about our present
sentencing practices and policies. I have appointed a Sentencing Task Force composed of
legislators, citizens and criminal justice practitioners to examine sentencing practices
and policies and make recommendations. The task force is to complete its work by this
fall. Their report will provide me and the General Assembly with valuable guidance.
1 do know that several states have developed or are developing special programs to
deal with criminal sentences. Minnesota has been using a sentencing guidelines approach
for several years, and an evaluation revealed a 73 percent increase in imprisonment of
offenders committing serious crimes, and a 72 percent reduction of those committing
less severe offenses. Minnesota indicates that their particular guidelines system has
allowed them to deal with their prison capacity problem more rationally. The National
Institute of Justice is currently funding the Maryland Sentencing Guidelines Project. The
Project's assigned goals are:
— Tc increase equity in sentencing, i.e., to reduce unwarranted variation while
retaining judicial discretion to individualize sentences;
— To articulate an explicit sentencing policy while providing a regular basis for
policy review and change;
— To provide information for new or rotating judges; and
— To promote increased visibility and understanding of the sentencing process.
Responsibility for overseeing the development and implementation of the
guidelines was assigned to an advisory board of ten judges from the project test
jurisdictions. To broaden the perspective of the board, the judges added eight ex officio,
non-voting representatives of the legislative and executive branches of government.
Maryland and some other states using a similar approach tell us that the
advantage to a sentencing guidelines system lies in its ability to take into account
systematically and publicly the most common variations in offenders and their offenses,
within the current statutory framework. They point out that systematic sentencing can
be achieved by having the judiciary, as a body, agree on the factors to be considered in
making sentencing decisions. Such an approach is apparently intended to establish a
25-694 0-84-16
234
policy or structure within which judges can then exercise their discretionary powers. It
is also designed not to be overly restrictive by the inclusion of a means for judges to
deviate from the established policy in compelling circumstances.
With respect to the sentencing guidelines approach I would say that the verdict is
not in yet if the results we are now observing in the several states utilizing this approach
are any indication. We will continue to watch them with great interest, however.
FORFEITURE REFORM
Mr. Chairman, recent attention to forfeiture reform, intended to cripple the drug
trafficker economically, is attention well-placed and resources well-spent. In the states.
we are just beginning to develop new forfeiture laws and to experience the results of
such legislation.
The State of Florida, for example, collected $658,026.55 between July 1982 and
May 1983, and uses it to administer the forfeiture program at the state level. Last year,
the Virginia legislature passed a measure providing stronger laws regarding the forfeiture
of property and money obtained through the manufacture, distribution and sale of illegal
drugs. This measure, which took effect on 3u]y 1, 1982, was a part of my larger crime
package. As the evidence that forfeiture reforms are working is still being collected, the
nation's Governors strongly support this provision of S.829.
INSANITY DEFENSE REFORM
Although NGA does not have a policy regarding this issue, insanity defense reform
is a major issue in several states which could serve as models for developing a federal
statute. In its final report in August of 1981, the Attorney General's Task Force on
Violent Crime recognized the states of Illinois, Indiana, and Michigan where an
alternative insanity plea verdict of "guilty but mentally ill" was enacted to enable juries
to respond better to situations of criminal insanity. Under the law in these states, a jury
may recognize a defendant as mentally ill, but nevertheless hold him responsible for his
criminal actions, provided that mental illness does not negate the defendant's ability to
understand the unlawful nature of his conduct and his ability to conform his actions to
the requirements of the law. Once an individual is incarcerated, corrections intake units
make a psychiatric evaluation. If the individual is found to be mentally ill, he is sent to
the state department of mental health for treatment. If he is ever considered to be
mentally fit during the period of the sentence, he is returned to the department of
corrections for completion of his sentence. In this way, the individual is held
235
accountable and responsible for his actions, and is punished accordingly.
REFORM OF FEDERAL INTERVENTION IN STATE PROCEEDINGS
The National Governors' Association believes that one of the principal factors
contributing to the decline in public confidence in criminal justice is the lack of
certainty and finality in the criminal justice system. Although certainty and swiftness of
justice have been universally accepted as strong deterrents to criminal activity, the
diminishing ability of the states to carry out the judgments of their criminal courts has
led to an erosion of certainty.
We believe that the Writ of Habeas Corpus was designed as a shield to protect
innocent citizens and not as a sword to frustrate the administration of justice. Today,
however, some of those commendable procedural safeguards attached to the writ are
being abused and have become instruments with which to delay or stymie justice.
Because of these and other problems caused by the abuse of the Writ of Habeas
Corpus, amendments to federal criminal law are necessary to require the orderly and
timely presentation of claims on behalf of criminal defendants and to restore finality to
the criminal justice process and a proper respect for state court factual determinations.
Federal law should be amended to:
— Require that a district judge, rather than a magistrate, conduct any
evidentiary hearing held in a habeas corpus proceeding involving a prisoner
held in state custody.
— Recognize the legitimacy of the "contemporaneous objection rule" which
bars litigation of issues not properly raised unless "cause and prejudice" is
shown for failing to comply with state procedural requirements.
Establish a reasonable time limit within which state prisoners must institute
a federal habeas corpus action which challenges their state court conviction.
Require a habeas corpus court to accept state court findings of fact where
there is an evidentiary basis for that finding providing the petitioner was
accorded a full and fair hearing on the factual issue.
236
The reform of federal habeas corpus proceedings will ensure a greater finality of
state crinninal court convictions and a greater deference to findings of fact in state
criminal proceedings. This proposal is not designed to prevent reasonable review of
criminal convictions by federal courts, but to prevent the filing of frivolous and
repetitious petitions for habeas corpus.
NARCOTICS ENFORCEMENT
The issue of drug trafficking and organized crime is a major problem faced by
Governors. It was discussed last year by the Southern Governors at their annual meeting,
and by NGA at their annual meeting. Furthermore, NGA sponsored a major symposium
on "Illegal Drug Trafficking in the United States" during the most recent winter meeting
here in Washington. We discussed the seriousness of the drug problem with Attorney
General William French Smith and Federal Bureau of Investigation Director William
Webster.
I have attached a copy of the Special Governors' Work Session proceedings which
fully explains the activities in which the Governors have been involved regarding the
problem of illegal drug trafficking.
The National Governors' Association unanimously adopted a policy calling for a
comprehensive approach to reduce the availability of illegal drugs and the adverse
effects of drug abuse in society. This approach must include international cooperation,
drug law enforcement, education and prevention, detoxification and treatment, and
research. We feel that a sound policy to combat drug abuse and trafficking must address
the following concerns:
Need for Increased Educational Effort: There must be consistent exchange
of information and ideas among the various disciplines that can have an
impact on consumer demand. The ultimate long term success of drug control
efforts is not possible without a marriage of these disciplines, supported by
an educated and involved public. Therefore each state should consider the
establishment of a Blue Ribbon Statewide Drug Education Commission
involving leaders from the public and private sectors.
Need for Intensified Eradication and Interdiction: Military/Naval Assistance
to State/Local Governments: The federal government has exclusive
responsibility for coordinating interdiction of drug shipments from foreign
countries and assisting those countries in the eradication of drugs at the
source. This should be a top priority of the federal government. Also, the
Administration is urged to expand the role of the military forces of the
United States in air and sea interdiction efforts. This role should include all
regions of the country, and should represent a more significant effort than
presently exists.
Need for a National Reaction: We must show that this is a very serious
effort to combat drug abuse and trafficking in this nation. Over the past
237
decade, numerous states have been adversely affected by the growing drug
problem. These states have taken independent steps to combat the problem;
however, their resource limitations and geographic restrictions have
hindered their effectiveness. The federal government, realizing the national
ramifications of the drug problem, has conducted several significant
operations which have lessened these restrictions and limitations, such as the
recent Bush Task Force in South Florida and the creation of 12 regional task
forces. The nation's Governors appreciate this effort and encourage the
federal government to maintain on a permanent basis the federal resources
associated with this effort.
o Need for a Centralized Information and Intelligence Data Base: Law
enforcement agencies involved in drug control have historically been
hampered by lack of accessible and assessable intelligence information
relating to illegal trafficking. A centralized system to receive, analyze and
disseminate information among state and local law enforcement agencies
must exist if proactive, non-duplicative and significant targeting efforts are
to occur. Such a system must interact with similar systems in other states
and the federal government.
o Need for Concerted Street Enforcement Activity: Local law enforcement
agencies must provide the immediate response to a variety of community
demands in crime control. It is difficult for those agencies to dedicate
already strained resources to provocative drug prevention and enforcement
problems. Governors and legislators of the various states should apply
maximum support and effort toward increasing resources (personnel and
equipment) of local law enforcement agencies.
o Need for Standard Legislation: There exists a great deal of disparity among
the states' drug laws. There is evidence that smuggling organizations have
taken advantage of some states' deficiencies in legal recourse and
probabilities of detection, apprehension and prosecution. Therefore, each
state should establish a legislative committee of prosecutive, enforcement,
judicial and legislative members to examine and develop a comprehensive
system of model and uniform laws dealing with the drug problem. Also, a
national committee should be created, reporting to the National Governors'
Association's Committee on Criminal Dustice and Public Protection. This
committee will develop a comprehensive system of model and uniform laws
dealing with the drug issue.
o Need for Greater Prosecutorial Commitment: Heavy court dockets and
broad responsibilities minimize prosecutors' effectiveness in dedicating
resources to the prosecution of major drug smuggling operations.
Alternative approaches to drug prosecution and greater levels of
coordination among circuits dealing with multi-jurisdictional organizations
are needed. Prosecutors should take steps to expedite drug enforcement
cases, as has been successfully accomplished in cases involving career
criminals. Additional prosecutorial resources are needed to provide for
dedication to prosecution of highly financed and well defended drug
organizations.
o Need for Coordination of Efforts of Local Agencies: There is generally no
mechanism to provide for local/state agencies to pool their resources and
work together on common drug targets. Equipped with the necessary
legislation, agencies can draft contractual agreements to effect "joint force
operations" or "mutual aid pacts" to expand resource and jurisdictional
abilities to attack drug operatives. States should consider developing the
necessary legislation for a "mutual aid system," whereby law enforcement
agencies can contractually join together and pool their knowledge, resources
and skills toward investigatively attacking drug smuggling networks.
Addressing these concerns will help us get a handle on the illicit drug problem in
this nation. Some of these concerns are of a state and local nature and many of our
states are dealing with this issue, as 1 explained ur>der the forfeiture reform section of
238
this testimony. However, there are some concerns that are federal in nature and must be
addressed by the federal government, e.g., interdicting illegal drugs on high seas and at
border points, and dealing with major source countries.
JUSTICE ASSISTANCE
The federal government's role in crime control lies in the areas of leadership,
research, technical assistance, and training and coordination of the federal and state
interests. It has a special responsibility, however, to develop and test alternative
methods of improving the criminal justice system and to adequately support research on
criminal justice problems identified by state and local governments. The federal
government can further provide leadership by funding mooe. pngrams in criminal justice
and law enforcement at the state and local levels.
Research and evaluation efforts that are most likely to be of immediate use to
state and local criminal justice agencies should be given the highest priority by the
federal government. The National Governors' Association recognizes the importance of
coordination among federal, state and local governments in dealing with the crime
problem. Therefore, state and local criminal justice practitioners should be involved in
the research effort and in the implementation of its results.
Title VIII of S.829 contains a $90 million justice assistance program providing
block and discretionary grant programs to states and localities. Several other justice
assistance proposals have been introduced in this session of Congress including S.53
sponsored by Senator Arlen Specter and H.R.2175 sponsored by Rep. William 3. Hughes.
In addition to direct financial assistance to states and localities, these proposals, like
S.829, reauthorize the National Institute of Justice and the Bureau of Justice Statistics
which provide the critical criminal justice research and statistical functions at the
federal level.
Our support for justice assistance, whether financial or research and statistical, is
predicated on the principles of federalism, specifically that it should be provided through
and in cooperation with the states, to insure proper coordination of federal, state and
local resources. We have learned and now know only too well, that targeting limited
resources for the purposes of replicating successful programs from one state and
community to another is the best method for implementing change. To do this
appropriately, we need to focus our coordinated efforts on projects that work.
As Governor of Virginia, it is my vi»w that this title could provide valuable
239
financial and technical assistance to the states and their localities in the fostering of
innprovements and innovations in the criminal justice system. Implementation of the
block grant concept of federal financial assistance provides federal recognition of the
important role of state and local governments in criminal justice.
SURPLUS PROPERTY FOR PRISONS
There are approximately 39 states and territories either under direct court order
or involved in pending litigation regarding prison population overcrowding and/or general
conditions. Most of the states are in need of nev. bed-space to house prisoners. As of
1978, there existed a shortage of over 6S,000 prison bed-spaces. While states are
attempting to deal with this problem by increasing construction, the need for available
property would relieve some of the burden placed on states, especially some capital cost.
According to the Bureau of Justice Statistics, the prison population continues to
increase. From several scholarly estimates on prison population predictions, we can
expect a continued increase through 1990. At the end of 1982 there were 'tl2,303
inmates in federal and state prisons, which represented an annual increase of almost
43,000 inmates, and was the highest in any year since data became available in 1923.
In recent years, 37 states passed mandatory sentencing laws and several others
enacted determinate sentencing statutes. This development has caused prison
overcrowding to reach crisis proportions. Indeed federal judges have in several instances
ordered the release of prisoners short of their prescribed sentences.
Therefore, the National Governors' Association supports the donation of surplus
federal property to state and local governments for urgently needed prison space.
CONCLUSION
Mr. Chairman, the problem of crime in this nation is critical. We must act in the
name of our domestic defense. Our national constitution states emphatically that "a
more perfect Union" was formed to insure domestic tranquility. However, many of the
nation's citizens do not live in peace, but in fear, fear of being robbed or raped if they
venture out in their own neighberheed*.
The National Governors* AaaocUtion intends to work more closely with the
Congress and the Administration in waging this battle against crime, and promoting
peace in our communities.
Thank you.
240
Illegal Drug Trafficking
In the United States
Special Governors' Work Session
February 27, 1983
Washington, D.C.
Sponsored by
The National Governors' Association
Committee on Criminal Justice and Public Protection
Governor Charles S. Robb, Chairman
INTRODUCTION
Illegal drug trafficking represents a root cause of many of this country's most
serious domestic ills. The rate of violent crime remains near an ail-time high level. Data
developed by the Bureau of Justice Statistics indicate half of all inmates housed in our
overcrowded prisons were regular drug users during their criminal careers. Recent
research has shown that drug-addicted criminals are particularly violent, repeat offenders,
and that a significant proportion of all serious crimes are committed by a small core of
repeated offenders, many of whom are addicts.
In addition to cold crime statistics, however, there is a terrible human toll
associated with drug abuse. The National Institute of Drug Abuse has projected that tens
of thousands of heroin and cocaine users may suffer drug overdoses this year.
The economics of the drug trade are staggering. Trafficking is estimated to be an
$80 billion per year underground enterprise operated by a variety of organized criminal
elements. Trafficking threatens the nation's economy and undermines its governmental
institutions.
In light of these grim statistics, the Administration, the National Governors'
Association, and the National Criminal Justice Association have developed a special
Governors' Project as part of an overall national assault on organized crime and drug
trafficking. The project, and the role of the states in addressing drugs as a national
priority, were the themes of a special symposium held February 27, 1983, in conjunction
with the mid-winter meeting of the National Governors' Association in Washington, D.C.
The program featured top Administration law enforcement officials and Governors who
have taken lead roles in the areas of criminal justice and public protection.
The Governors' Project is an important commitment to federal-state cooperation
and coordination in addressing the pressing problems of organized crime and drug
trafficking. The special session represented both the culmination of a lengthy series of
planning and organizational steps, as well as the beginning of a substantive program
designed to streamline and improve the way all levels of government address the drug
problem.
The project is already bearing fruit. The participation of Attorney General William
French Smith and FBI Director William Webster in the special session was the first of
what will be twice-yearly meetings between top Administration officials and the
Governors, to discuss policy issues of mutual concern relating to drug trafficking and
organized crime.
At the operations level, a group of leading state drug enforcement program experts
has been selected to meet on an as-needed basis with top federal operations officials in
Washington. Meetings have already taken place. Future gatherings will guarantee that
the states are fully aware of federal organized crime and drug trafficking strategies, and
that the Administration benefits from the Input of knowlcdfaable state law enforcement
officials.
241
A third level of cooperation and coordination between the federal program and the
states will soon be established in each of the 12 federal core cities. Governors will be
encouraged to select lead state drug enforcement coordinators to meet regularly with
federal leaders in the appropriate centers of regional task force operations. In this way,
states and their Governors will have direct access to those federal efforts and decision-
makers most directly affecting them on a day-to-day basis.
Finally, the National Criminal Justice Association, on behalf of the National
Governors' Association, has begun an effort to develop new resources that will enable
individual states to reform and improve their drug laws. The product of this effort will be
guidance materials for Governors and state legislatures outlining what already exists at
the state level to address organized crime and drug trafficking, and things states should
do to improve and expand their programs to make them more effective.
The Governors' Project is the lynchpin to improve on-going relationships between
various levels of federal and state law enforcement officials. It has generated a number
of new ideas which will serve to improve the nation's ability to address organized crime
and drug trafficking.
Early proof of this is a White House announcement March 23 that Vice President
George Bush will head a newly formed National Narcotics Border Interdiction System
program to coordinate the work of federal agencies involved in the interdiction of
imported narcotics and drugs. Creation of NNBIS implements the Governors' recom-
mendation that the federal government take exclusive responsibility for coordinating
interdiction of drug shipments from foreign source countries.
NGA DRUG POUCY INITIATIVE
BACKGROUND
CHRONOLOGICAL OUTLINE
The following is a chronological outline of developments regarding the drug issue.
• 3uly 2?^, 1982 - The Southern Governors' Association meeting placed illegal drug
trafficking as a priority issue and called for a special meeting among the
southern states.
•
•
•
August 8, 1982 - Governor Clements of Texas discussed the drug abuse problem
before the Governors at their annual meeting in Oklahoma. NGA approved the
policy entitled "Controlling Illegal Traffic in Narcotics."
August 13-30, 1982 - A survey of Committee Governors identified drug
trafficking, prison overcrowding and sentencing as priority problems.
September 13, 1982 - The Southern Governors met in Tennessee on the drug
trafficking problem. A policy outline was developed.
October 2, 1982 — The President announced his comprehensive drug program on
his weekly radio program.
• October 5, 1982 - The President officially released his comprehensive program
to combat drug abuse and trafficking.
•
•
•
•
October ji*^ 1982 - The Department of Justice released its fact sheet on the
President's initiative to combat drug trafficking and orgcinized crime- the law
enforcement section of the comprehensive program. The Governors' Project
was announced in this package.
November 12, 1982 - Governor Robb initiated the Ad Hoc Drug Working Group
(NGA/NC3A) and discussed the Committee agenda with the NGA Executive
Committee in Park City, Utah.
November 18, 1982 - Ad Hoc Drug Working Group met to define the Governors'
Project referred to on October U, 1982.
December 13, 1982 - The Staff Advisory Council met and approved the Ad Hoc
recommendations for the Governors' Project.
242
January 6, 1983 - Governor Robb wet with Attorney General William French
Smith to discuss the Governors' Project.
January 13, 1983 - The NGA/NC3A Ad Hoc Drug Working Group met to further
refine the drug policy recommendations as developed by Governor Bob Graham's
staff. The first federal/state drug enforcement operations meeting was held at
the Department of Justice,
February 27, 1983 - NGA work session on the Illegal Drug Problem in America.
February 28, 1983 - The Committee recommended and approved drug policy.
March 1, 1983 - NGA approved new drug policy.
"Illegal Drug Trafficking in the United States"
Presentation of
Governor Charles S. Robb
Commonwealth of Virginia
Chairman
National Governors' Association
Committee on Criminal Justice and Public Protection
February 27, 1983
Thank you for coming. Sunday mornings are usually reserved for less arduous
exercises. For those of you accustomed to sermons at this hour, I hope that you won't feel
that this program has in any way fulfilled that obligation.
Preachers and politicians do have a lot in common though. We have all the right
answers unfortunately, people keep changing the questions.
We generally have more questions than answers however, to what has become one of
the most vexing problems in America — drug trafficking and abuse. Questions like:
• What actions are necessary to regain control of our borders and reduce the flow
of drugs into the country and through our states;
• What continuation of events and programs are needed to restrict production at
the source and cut the supply lines;
• Which steps can be taken to eliminate demand;
And finally,
• What has changed about the drug problem (in addition to the press coverage)
that prompted this Sunday morning session?
In answer to the last questions, the principal change is not that drugs are any more
deadly — although drug related deaths are steadily rising — but that the dimension of the
problem has grown to critical proportion.
I would like to try to set the stage for our discussion —
• The Drug Enforcement Administration estimates that in 1980 alone, more than
4.3 metric tons of heroin were imported to the U.S.
• Between t^O-i^& metric tons of cocaine were imported into the U.S. that same
year which represented a 57% increase between 1979 and 1980.
• DEA statistics show that an estimated 25 million Americans are currently users
of marihuana.
As each Governor here today is only too well aware, the illegal drug trade in the
243
U.S. is a multi-bilUon-dollar business. In fact current sales are estimated to be in excess
of $80 billion. To put that in the most graphic perspective, consider for a moment that
the $80 billion figure is more than the combined annual profits of the Fortune 100
companies; and one-half the combined budgets of all of our 50 states.
In short, while bankruptcies threaten the future of historically sound industries,
business is booming in the drug trade. Sales were up an estimated 50% from 1977, while
seizures, during fiscal years 1977-81, comprised less than 10% of the estimated supply of
cocaine, heroin and other dangerous drugs.
The stimulative effect on other crime is immediate. Data from the FBI show that
one family in three will be the victim of serious crime this year. ..50% of those individuals
who are now in prison used drugs a month prior to the offense for which they are
incarcerated. There is a clear link between trafficking in illegal drugs and the growth of
serious crime in our streets, in our communities, in our homes.
The problems drug-related crimes create for law enforcement officials are multiple.
There are too many drug deals and too few police, too much shore line and too few
patrols. There are too many cases and too few prosecutors for too many felons and too
few prison cells.
The ultimate concern, however, goes beyond the economic impact and the law
enforcement burden; it involves the price we are paying as a society. In the first nine
months of 1982, almost 10,000 people suffering heroin overdoses were admitted to
emergency rooms in 820 hospitals in our major metropolitcin areas. During the same six
months, those same facilities treated more than 1^,500 people suffering from cocaine
overdoses — more than the total number of such cases for all of 1981.
And we still do not know the full effect that today's most common drugs will have
on future generations. But the effect they have had on our present generation should be
sufficiently disturbing to prompt us to act without delay.
Obviously our individual states have a major stake in size and type of law
enforcement effort designed to reduce drug trafficking. As we know when a coordinated
drug crackdown takes place in Florida or Texas, we see an immediate increase in drug
drops in Tidewater, Virginia or rural Tennessee and in each of your states — creating a
"trickle up" situation if you will. Simply put, when the tap is turned off in one region, the
pipeline pours the problem out into another region — many of which are poorly equipped to
deal with the problem on a large scale.
As Governors we realize that the drug problem is not confined to state boundaries
and it does not recognize territorial borders. It is a problem with state, national and
international implications and it is going to require a great deal of cooperation if we hope
to make auiy permanent headway in solving it.
At every level, we have begun to put in place some of the necessary initiatives to
deal with the problem.
♦ The Southern Governors' Association met last summer and began a coordinated
initiative which has led to policy recommendations every state can utilize if
they chose to.
• I appointed an ad hoc committee of operations experts and policymakers last
fall to work with this committee on the drug issue.
* President Reagan announced an eight-point law enforcement initiative in
October which included a special Governors' Project.
♦ In January, I met with Attorney General Smith who we will hear from in just a
minute to discuss the Governors' Project and the concept of federal-state-local
coordination.
This last item, the Governors' Project, which brings us here this morning is an
example of what could be a much more coordinated approach, that I believe is essential.
The project emphasizes the development of new and improved tools to attack the drug
problem, the cteation and implementation of new policies, and stronger coordination
among various levels and branches of government.
244
Improved tools; As for improved tools, the states need better laws to address the
trafficking problem effectively. The Governors' Project is expected to develop
guidelines to help the states build these tools. We need to reform our bail laws so
that known traffickers cannot walk the streets; we need to strengthen forfeiture
statutes so that the costs of trafficking are substantially increased; we need to
impose tougher sanctions on those convicted of serious drug offenses; and we need
to improve laws permitting cooperation with the military, particularly in coastal and
border areas where international trafficking is a serious problem.
Innovative policies; In the area of innovative policies, individual states will
obviously benefit from a package of balanced, flexible policies which can be tailored
to the needs of each. Bob Graham has led an effort to produce such a package, and
he will address his recommendations this morning.
Coordination; The final and critical part of the Governors' Project is better
coordination. A major complication in drug cases is balancing the requirements of
undercover operations with the need to inform other law enforcement officials of
these activities. When communication lines break down the result is often cops
arresting cops. As the Governors' Project is envisioned, the various levels and
branches of government will work more closely together. Top Administration
officials will meet twice yearly with the Governors at our annual meeting; experts
from the states will meet regularly with and contribute their ideas to lead
operational officials in Washington; and representatives of individual Governors will
have regular access to enforcement and prosecution teams implementing the 12
regional anti-drug task forces.
In conclusion, the purpose of the symposium is to explore these state, interstate and
international strategies and to identify ways in which our various levels of government
can not only join the battle, but join forces in waging the war on drugs.
Attorney General William French Smith and Judge William Webster have been the
architects and engineers of the newly inaugurated national program to combat drug
trafficking and organized crime and they are here today to discuss with us the progress
made in putting that program in place.
After we have heard from them, we will have the opportunity to hear from three
Governors whose states have taken major initiatives to deal with the drug trade in their
states.
Remarks of
The Honorable William French Smith
Attorney General of the United States
February 27, 1983
As Governor Robb has said, last October the President announced a major. ..initiative
directed against the drug trafficking problem and organized crime. That was an eight-
point program and one of those points... was a Governors' Project designed to enlist the
aide and support. ..of the various states. We're going to discuss a iittle later the specifics
of the Governors' Project from our vantage point.
I would like at this point to introduce my colleagues who are here with me:
Jonathan Rose, the Assistant Attorney General in charge of the Office of Legal Policy, has
direct responsibility for the Governors' Project. And working with him is Ed McNally.
Also here to respond in connection with the 12 task forces that are a central part of that
program is Rudy Giuliani, the Associate Attorney General.
I thought that before calling on 3on Rose for specifics on the Governors' Project, that
I would give you a little background as to how we happen to be here this morning at this
time with respect to this program. One of the first things that we did when we came into
office was to appoint the Attorney General's Task Force on Violent Crime, co-chaired by
former Attorney General Griffin Bell and your colleague, Jim Thompson of Illinois.
That task force produced 6'f very excellent recommendations. ..One of them was that
the U.S. attorneys, all 9^* of them, be directed to take the leadership. ..to establish
cooperative relationships with state and local law enforcement officials. We have
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implemented that program and as a result of that have been able to bring together a fine
resource of federal, state and local law enforcement efforts and to develop priorities
based upon the needs of those 9'* districts, which of course will vary from time to time;
the resources will vary; the priorities will vary.
But it certainly is of interest that every single one of those districts - designated
drugs, and particularly in connection with organized crime, as being the number one
priority; all except one. Now, that one has also reported its priorities and has determined
that drugs there, too, is the number one problem. That makes it unanimous. There is no
question about the fact that drugs are the number one problem in the criminal area in the
country.
Here in Washington, from an organizational standpoint, we established for the first
time. ..an interagency cabinet-level group to coordinate drug enforcement. We also
reorganized the Drug Enforcement Administration itself, particularly at the top, to make
it a tougher organization. And most significantly of all, we consolidated the Drug
Enforcement Administration into the FBI to bring for the first time the nation's leading
law enforcement agency into contact with the nation's number one crime problem.
In addition to that, we also have taken steps to achieve changes in legislation and
federal law. We sought and were able to obtain from Congress an amendment to the
Posse Comitatus statute which, again for the first time, permits the use of intelligence-
gathering capabilities and resources of the armed forces in the battle against drugs.
That was a major change. That intelligence that we are now using has been
invaluable, to say nothing about the resources that we are also able to utilize m this
battle. Other changes, such as the repeal of the Percy Amendment, which now permits
Paraquat to be used against marijuana in source countries, has been very successful.
Other changes we have sought but we have not achieved as for now, changes such as
Governor Robb referred to dealing with bail reform, sentencing and a variety of other
changes we think are badly needed; we will introduce very shortly an omnibus crime
package which contains these and other changes...
We also, for the first time — recognizing that South Florida as a key point in the drug
trafficking area — organized, under the aegis of the vice president, what has become
known as the South Florida Task Force. This involved bringing under one entity the
various agencies of the federal government dealing with drugs and drug trafficking,
including for example, obviously the FBI and DEA, Customs, the Department of
Transportation's Coast Guard, the IRS, the ATF, the Department of Defense in certain
areas. And so that again, for the first time, under a single umbrella, we have brought
together in a directed effort an organization to deal with that problem in South Florida.
By every measure, the South Florida Task Force has been a great success. However,
its very success created two additional problems. First, in order to gather that group, we
had to pull law enforcement personnel from other parts of the country. Investigators,
prosecutors, even judges. Prison space. ..created a problem. So that, to that extent, the
South Florida Task Force has created certain problems in other parts of the country.
We created a second problem. ..with respect to the South Florida Task Force. ..Drug
traffickers finding it more difficult to do business there, went elsewhere. Those two
problems, together with other considerations, were responsible for the development of the
program which the President announced last October.
One of the principal elements of that program was the creation of 12 new task
forces based upon the experiences of the South Florida Task Force, around the country.
They are not the same as the South Florida Task Force, but they are similar and based
upon that experience.
Those task forces are now in the process of being implemented. We expect that by
summer they will be in full operation.
Other aspects of this program are certainly important as well. We are going to
appoint a commission on organized crime to focus further attention on this problem.
That's along the lines of the Kefauver Commission. ..Other programs include a cabinet-
level committee, an annual report by the Attorney General to focus attention on this
problem...and of course additional resources. But certainly critical to this overall
program is the relationship between the federal authorities which will be responsible for
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these programs and the states. And, of course that is the genesis of the Governors'
Project that we are talking about today.
I want to say that I've already met with Governor Robb, chairman of your
committee in this area. We are most appreciative and gratified for the enthusiasm and
support that we have seen for this program so far. We want to do everything we can do to
involve the states fully in this effort. It certainly is a problem that we alJ have to be
concerned about....
So with that as the background... I would like 3on Rose, who has responsibility for the
Governors' Project, to briefly outline what we have in mind ahead.
Remarks of
The Honorable Jonathan Rose
Assistant Attorney General for Legal Policy
February 27, 1983
We have begun our efforts to work with you, recognizing the limitations put upon us
both by the fact that this is not only a state and local problem, which you fully recognize,
but it has a very important federal dimension because of its interstate and international
aspects. We have tried to figure out ways we could constructively work at the most local
level, which I'll be asking Associate Attorney General Rudy Giuliani to talk about in a
minute, at the task force level with the local prosecutors, local police, to try to best
coordinate our joint efforts toward this common problem.
Our role in the Governors' Project is basically that of a liaison role so that you Cc.n
get the kind of help that you need at the state level, and at the Governors level at the
head of the state police level. You have access to the Justice Department, and the
Attorney General, at the highest level for the kind of help that you need.
We found, for example, when we first got into this project, that there was no one
place. ..all of you could turn to find the various things that were available to you in terms
of training. We have found that law enforcement training is something the federal
government. ..has a long history of ...the FBI has done it for years. ..very successfully. And
yet there was no one place that a state official could go to find a catalog of training
programs that were offered by the federal government that could be used by the various
people that they might want to send.
We have developed very recently, a catalog of law enforcement training programs
that are available from the U.S. government for the states and local governments. That's
one concrete step that we have been able to take since the Attorney General's meeting
with Governor Robb.
The second thing that we have to thank you for is the strong endorsement of the
President's program to try to move these task forces and to try to achieve greater
coordination between the state and local level, and also your specific endorsement of
some of the law enforcement measures. We've had a very terrible time trying to convince
Congress that all of the tools were in place at the federal level; that we needed
legislative tools to combat the very serious drug problem that we face. We have terrific
support from virtually every Governor in convincing the Congress that without these tools,
they are going to be much less effective at the state and local level. Also, obviously, if
these tools get enacted as a matter of federal statute, they become.. .examples for state
legislatures.
We also hope to serve as a channel of communication where efforts are successful in
particular areas of the country. We hope to communicate good ideas, good pieces of
legislation, good projects from one part of the country to another by way of a newsletter.
If you find this useful, we hope you'll let us know because we think it could be the
beginning of a nationwide effort to communicate and share good ideas in this very
important field.
Finally, I would simply like to say that Ed McNaily on my staff will be continually
available to those on your staff who have problems in this area. Obviously we must
247
confront the fact that there are certain coordination and operational problems that do
exist in this field from the standpoint of confidentiality, but we would like to try to
minimize those and try to work with you insofar as we can to pool the kind of resources
that we have. We obviously are all incUned to budgetary stringency and budgetary
cutback...
Remarks of
The Honorable Rudolph Giuliani
Associate Attorney General
February 27, 1983
The purpose of those Law Enforcement Coordinating Committees is to brinp,
together federal, state and local law enforcement so that we can plan together how we're
going to use our resources. They've made many, many contributions to our planning and
they were a substantial contributor to the development of the 12 task forces...
When Attorney General Smith became Attorney General, about two years ago, there
were 1,800 federal agents involved in drug enforcement. With the bringing in of the FBI
and giving them jurisdiction to do drug work, we added approximately 500 to ^""
600
additional agents to the effort against drugs. And with this additional task force effort,
we will add another 1,200. So that in the space of about a year and a half, you will have
doubled the size of federal agents in the field, able to do and ready to do drug
enforcement work. That's a very, very substantial increase in the number of federal
agents for drug enforcement.
How we use those resources is really the key to whether we are going to get the
impact that we should be getting out of that...
We would like to work with you, through the Law Enforcement Coordinating
Committees, in developing. ..the priorities of these task forces, what kinds of cases they
should be working on, how the agents should be deployed.
Each one of the task forces is located in a core city. But it is intended to be a
flexible task force to go where the problems are greatest. We have no special wisdom in
determining that. Your state and local law enforcement probably knows as much if not
more about that as we do.
Each one of the task forces will have local representation on the planning
committee, and we're beginning to form them now...
Remarks of
The Honorable William Webster
Director
Federal Bureau of Investigation
February 27, 1983
I don't want to overuse the term for the first time, but I do see, as I finish 5 years in
Washington, a convergence of efforts and interest in the drug problem from the chief of
police of the smallest hamlet to the President of the United States. And 1 think this
presents a unique opportunity for all of us in government, and a particular challenge to
the Governors and those of us in federal law enforcement, to carve out of this challenge a
more effective way of dealing with a problem that touches each American in his home, in
his business, in the quality of his life.
We have come to the time when the approach to federalism has been making more
and more sense to me. The Law Enforcement Coordinating Committees are illustrative of
the kind of coming together that is possible in our society to bring all levels of
government to bear on particular problems.
I recall my days as a United States Attorney in St. Louis in 1960, and my
counterpart in St. Louis was currently Serator Tom Eagleton who was the circuit
attorney. We were good friends, we attended the same college in Massachusetts, and we
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talked about getting together and never got together during the entire time we were in
office, to discuss problems of crime in our community.
That's changed today, changed very significantly. I was out in Salt Lake City just a
few weeks ago with a Law Enforcement Coordinating Committee meeting with every
federal agency present. ..the state attorney general, a full array of state officials, and
they were well into their problems. That's encouraging. ..because I see signs of increasing
ability. ..that in the real world we are providing effective assistance where it's needed...
This brings us to the problem of drugs. I think Governor Robb made reference to the
three-pronged areas that need attention in this area. The control of sources — the
Attorney General has been working for over a year in development of effective programs
to reduce the source where it is. His trip around the world to some of the major
producers of drugs and narcotics in the United States. ..has produced assurances of
cooperation and in very real instances of drug eradication programs there. More will be
coming.
The amendment to the Posse Comitatus Act permitted the military for the first
time to assist law enforcement agencies in the interdiction effort, to stop the flow of
drugs at the border. The use of attack helicopters, the availability of AWACS...even the
assistance of the Navy. ..this was an important and significant development in what we are
trying to do...
I think we are here this morning to talk primarily about what the federal
government, the state and local governments are doing and can do in the law enforcement
effort. And, incidentally, if we were to interdict. ..all of the products coming into the
country we would still have a major problem because we're growing. ..drugs in substantial
quantities in specific parts of our country where it is becoming an increasingly imporant
economic factor...
The Attorney General mentioned the bringing together of the FBI and the DEA to
provide a more effective law enforcement program. I'd like to mention just a few of the
things that have happened. In 3une 1981, the Attorney General designated the Executive
Assistant Director of the FBI, Francis "Bud" Mullen, to be Acting Administrator of the Drug
Enforcement Administration and tapped us to develop an approach to a close realign-
ment. The committee working on that was chaired by Rudy Giuliani, the Associate
Attorney General.
In January a year ago, the President announced a new program. The Attorney
General announced the beginning of concurrent jurisdiction in drugs. ..to the FBI.
Previously, our only contact with drugs had been through our organized crime enforce-
ment effort.
The Drug Enforcement Administration did not lose any of its machinery. We did cut
off the regional posts which we felt were unnecessary bureaucracy and cutting down on
efficiency. But all of the vital organs of the DEA remained in pface. A joint committee
worked out. ..what the FBI would work on, what DEA would work on, what we would work
on jointly, how we would share information, how we would disseminate information. We
signed off on that in March.
In the year that the FBI has had concurrent jurisdiction, we have developed over
1,100 cases; 300 of which are being operated jointly with the Drug Enforcement
Administration. These are not street cases. This is not an effort to substitute ourselves
for state and local law enforcement. It is an effort to carry out the mandate of the
Attorney General to attack the organized crime apparatus of cartels, motorcycle gangs,
traditional organized crime families which have now been identified as heavily into drugs
and narcotics.
This approach, I believe, is working very well. ..If anything, there has been increased
respect between DEA and FBI agents over their work, and there has been increased
efforts on our part to insure that state and local law enforcement agencies are tuned in to
what we're doing, how we're doing it, and to enlist their aid and assistance.
We have put in place without any additional resources 500 manyears of FBI effort
during the past year.
We have been cross-training Drug Enforcement Administration agents with FBI
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agents. Over 300 FBI agents have attended DEA training at Glynco in Georgia. We have
worked out the sharing of our laboratories. The FBI has all the forensic work; the DEA
laboratories do all the drug work.
The use of FBI accountants, the use of our informant network, the assistance that
we are now providing for electronic surveillance — court-authorized wiretaps — are
coming to bear in a very significant way.
We have tripled the number of important court-authorized wiretaps being operated
by DEA as a result of the availability of FBI expertise coming in to assist in those
questions. And it's paying off.
The FBI's emphasis has not changed. We've identified the role that we think we can
best play in this effort, and that is to go after, through our investigative efforts,
organized crime in drugs, financial crime in drugs, and public corruption in drugs.
To do this, we know we must (conform) our efforts with those of other state
activities which have been carrying this battle for so long. It's important that we be able
to deal with street problems, but we know if we're going to reach beyond the streets, as it
is our historic mission to do, we're going to need all the help and assistance of state and
local police officers that we can get. I want to make clear to you that in the
disseminating of information, we are looking for more and mor" effective ways to insure
that informatics is shared. It's tragic when an undercover operation by a federal agency
steps on the shoes of an operation of a state or local agency. The drug task forces now
offer a new means to approach the problem on a coordinated basis. I'd like to emphasize a
few things as 1 see them as these task forces have evolved. There are 12 regional task
forces plus the Miami-South Florida task force which also covers Puerto Rico. Originally,
there was some thought about putting in additional task forces in specific cities. Analysis
showed that we needed to cover and serve the entire United States, and that's why the
regional process evolved.
We identified core cities where we thought these efforts would best serve as a
vehicle for management to begin. We recognized that we did not want another layer of
federal bureaucracy operating within those regions, but we did need effective coordina-
tion. And we did need new resources. Not just more management, but new resources.
The addition of these will almost double the commitment of federal resources to the drug
effort. The Governors' Project will provide. ..an avenue, a conduit by which you can make
your wishes and concerns felt in this process.
ADDITIONAL COMMENTS
FBI Director Webster on Public Corruption; I think this is an area that should be
presented to the Governors for their consideration. ..We have already identified. ..the
tremendous problem that develops when large sums of cash are made available for payoffs
and corrupting of our public officials. We had a case in Henry County, Georgia, in which
the sheriff, the chief of police, the probate judge and a manager at the airport were
arrested on a conspiracy to provide a safe escort service for drug traffickers landing in
Henry County and being escorted into Atlanta for distribution of their drugs. I asked the
head of the National Sheriffs Association a little bit about this and he came up with an
interesting comment. He said, "How long does it take a sheriff earning $9,000 a year to
save $50,000 that he might get just by being somewhere else on a particular evening?"
This is the kind of challenge that all of us face today. The FBI is not immune; the DEA is
not immune; even the prosecutors have not been immune from this kind of corrupting
effect. And it is going to be particularly true in lower-paid political positions where the
lure of a little bit of cash for doing nothing— nothing violent, just being somewhere elso,
or even providing early warning — I think it's going to be our major challenge and we've
got to work at ways to improve the integrity and the resistance of our public officials.
Corruption of public officials is a key part of organized crime...
Attorney General Smith on Source Countries: I think an area that has been greatly
neglected in this drug fight has to do with source countries and transient countries. I
think that we need to have a much more directed effort at getting at the source countries
and transient countries and working with them and aiding them to get at this probletn
there, before it gets into the network. For example, when I was in Pakistan, the day
before I arrived they seized 100 kilos of pure heroin in one truck. When you think of how
25-694 O - 84 - 17
250
much easier it was to get that 100 kilos there before it had been cut and cut agr.in...you
see a dollar spent there is a more valuable dollar than one spent anywhere else along tiiL
distribution trail.
QUESTION AND ANSWER SESSION
Governor Charles Robb (Virginia); Recently, we've seen some evidence in the newspapers
that the price of certain controlled substances has decreased, notwithstanding the
President's initiative. Is this a legitimate indicator of success or lack of success in this
area, or should we look to some other criteria for evaluating the success of our efforts?
FBI Director Webster: There are so many factors at work it is very much like asking
"what causes crime". I think that price is an indicator but certainly not the only
indicator. Supply can be measured in part by what we are able to interdict and
seize. And that again is a function not just of the Department of Justice, but also
the Treasury Department's Customs has primary responsibility there with DE/a
assisting. The availability of what we see doesn't necessarily indicate what's
available. It depends on how much intelligence indicates is coming into the country
to be consumed...
Associate Attorney General Giuliani; It is difficult to measure by any one standard
success in drugs or any kind of law enforcement.
Governor George Deukmejian (California); In the explanation that we have heard about
the cooperation of the task forces, I did not hear any mention made about the various
regional information networks that are in existence. I know some of those there were
some problems with them; the one we have on the West Coast - our Western States
Information Network — dealing specifically with the drug problem; we have found to be
very, very successful covering nine Western states. I did not hear in any of the discussion
what the intent is with respect to maintaining their involvement in the task force.
FBI Director Webster; Governor Deukmejian, we are very much aware of those
systems. Some are better than others, particularly with respect to security. We've
got to resolve those questions, which we are currently addressing. It is very
important that investigations go forward without any kind of breach of security.
Some systems were not originally designed for that level of security.
Governor Dckmejian; How successful is the provision that has been recently emphasized
with respect to the seizure of assets of drug people dealing in drugs, organizations dealing
in drugs. Can anybody at this point give us any indication as to what extent that has had
an impact?
Associate Attorney General Giuliani; Last year, we came pretty close to seizing
assets comparable to the entire budget of DEA. In other words, DEA came pretty
close to paying for itself ...not counting drugs. Three major changes that would be
very helpful in federal lew would be; (1) if we could reach the profits of drug
dealers. When they invest their money in legitimate businesses, we can seize
property but we often can't seize the business and the profit. Legislation that
passed the Senate last year would permit us to do that. (2) Secondly, more
simplified procedures to dispose of property. Now it takes two or three years to go
through civil forfeiture proceedings in order to dispose of a car or even a plane. By
that time, it may have lost all value. (3) Number three, it would be very helpful if
some or all of those proceeds that we seize would go into law enforcement rather
than into the general treasury. If you turn it back to law enforcement, a lot of the
drug enforcement budget, if not all of it, would be offset really by the profits of
drug dealers.
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Remarks of
Governor Dick Thomburgh
Commonwealth of Pennsylvania
February 27, 1983
Our problem in Pennsylvania is somewhat different than in the border states. We
have a sizable user population and the size and configuration of our state causes us to
focus upon primarily the distribution networks within our state and in particular on major
metropolitan areas. For example, our enforcement efforts last year resulted in the
closing down of 17 major laboratories for manufacturing and processing of narcotics and
dangerous drugs. We also had a unique exercise dealing with the problem of look-alike
drugs which is a spin-off from the regular traffick we are all familiar with, in those who
seek to peddle substances which are in fact harmless and these resemblances can have
unfortunate consequences among the user population which develops a familiar'ty with
look-alike drugs and gets a pure substance.
Our enforcement activities in the last five years have taken a poignant leap as we
have introduced techniques into law enforcement that are familiar to those of us who
have been engaged in that effort at the federal level. But in Pennsylvania, for example,
five years ago we had no electronic surveillance laws. We do have and do utilize a court-
authorized electronic surveillance technique today with great advantage in this area.
Five years ago, we had no investigative grand jury. We have had statewide grand
juries which focus...on narcotics and dangerous drugs.
Five years ago we did not have an effective immunity law which enables us to
develop cases up the rungs of the ladder in major organized crime and narcotics
distribution networks. And we have got the law today.
We also have an effective victim and witness protection law which enables us to
thwart efforts to intimidate and terrorize those who are necessary to make these cases
that often are dependent upon departments' undercover operations and witnesses wouldn't
cooperate.
Five years ago we did not have an independent crime commission to carry out its
own investigative activity and acquaint the public with the true dimensions of organized
crime and drug trafficking.
Five years ago, we did not have an independently elected attorney general with
adequate resources to deal with the problem of crime in general. An attorney general
who today holds office and focuses attention on the drug problem to great advantage to
the state.
In short, we have I think, through the cooperation of our Pennsylvania State Police
and the attorney general. ..local law enforcement agencies. ..play a real role and have a
real presence and offer the type of personnel, expertise and commitment that federal
officials can take full advantage of in mounting a coordinated effort against narcotics and
dangerous drugs. We have 165 investigators working full-time in our state on drug
investigations through eight regional drug strike forces which are dispersed throughout the
state and which will integrate very well in terms of geography with the land configuration
of the federal effort.
We also carry out a number of training operations for local law enforcement
operations and every one of our state troopers is rotated at one time or another through
the narcotics and dangerous drugs effort.
We recognize, of course, as is the theme of what is being expounded here this
morning, that there is in addition to the supply side interdiction that is important to be
carried out through law enforcement, a demand side to the drug problem which depends
upon effective programs that are designed to prevent persons from becoming addicted
either physically or psychologically to drugs of various kinds and which also encompass
treatment and education programs which are designed to deal with the before and after of
this tragic problem.
We have a very effective council on drug and alcohol abuse within state govern-
ment... Joint projects are carried out within state government and local government
252
counterparts in the fields of education, prevention and treatment in an attempt to mount
an across-the-board effort. Some of the efforts I think are noteworthy are. ..prevention
networi< which was developed by the state Department of Health and Education. It
trained some 800 teachers in 135 school districts in drug abuse prevention and has
developed what we think is a model curriculum to support that effort in the schools.
We have an employee assistance program to identify and assist state workers with
drug and alcohol problems that works in cooperation with private employers to enhance
that capability which has a very harmful effect on the workforce unattended to.
We have a program called Treatment Alternatives to Street Crime which deals with
the addict criminal and in an effort to develop alternatives to incarceration on an
experimental basis in 11 of our counties we have tried to divert those who are commiting
addiction-connected crimes into alternative programs so that we can assess the efficacy
of that kind of alternative.
We have federal drug treatment programs for state prison inmates as well. I think
what we are most gratified with respect to our own effort is that we have seen
considerable progress made in public awareness about the nature and extent of the drug
problem. That there is indeed a massive underground business with substantial profits
that are being realized from trafficking in human misery and that there is much that can
be done on the prevention side as well as on the law enforcement side to deal with this
problem.
{ Remarks of
Governor Lamar Alexander
State of Tennessee
February 27, 1983
I'd like to add my appreciation to the Attorney General and Judge Webster. ..for the
work that they've done. The longer that I stay around government, the more I think that
still while the extra money. ..is very helpful, that the bigger challenge is spending what
we've already got well.
And quite obviously, during the last six months to a year in our state, the previous
cooperation and coordination with the federal agencies, what we've learned. ..has helped us
to do a much better job.
We've consolidated out efforts through the TBI (Tennessee Bureau of Investigation);
my four-year budget plan for the next four years adds some resources in a more specific
way than I would have been able to do; and we've got a council working on what the group
that Bob (Graham) got together in December says should be our number one project, and
that is to decrease the demand for drugs, and we're using examples from other states.. .We
are using the Florida model to determine some of the civil remedies...
Those are specific things that we are doing in our state. We appreciate the work of
other states and efforts a number of the Governors made and a number of the law
enforcement officers made in the meeting in Nashville, September 15 and 16.
Remarks of
Governor Bob Graham
State of Florida
February 27, 1983
I, too, want to express my appreciation to the Attorney General. ..outstanding
cooperative efforts that they have rendered to our state and to other states.
In terms of state action, I would categorize under four headings:
First, the state action. ..and local governments. In our state, and I think it would be
true in most states, local governments only have those financial resources and capabilities
which the state provides. One or two responsibilities of the state is to assure that local
253
governments have access to adequate resources with which to fight drugs and other
criminal activities. In our state, we had not done an adequate job and that resulted in
many of our local law enforcement agencies having fewer personnel in 1981 than they had
five years earlier. The last legislature substantially increased funds to local government,
which resulted in an immediate increase in the law enforcement capabilities of most of
our local communities.
Second, is local coordination. Through our Department of Law Enforcement at the
state level, we have developed mutual aid pacts between municipalities and counties so
that more effective use of resources is available to government and can be used.
Third, is state assistance. ..We operate a series of crime laboratories — f oren-
sics — which do the primary technical support for local law enforcement.
And, finally, training. The responsibility for setting standards and training law
enforcement officials in our state is at the state level.
At the state level, first there are law changes. We have substantially increased our
legal framework for drug trafficking. There has been a recent case involving a well
known football player who received a long sentence under our minimum mandatory
sentence for persons involved in drug trafficking. That has proven to be a strong
deterrent against drug trafficking in our state. The only ability to waive that minimum
mandatory under our law is to get the person to agree to cooperate...
We have both a criminal and a civil RICO act which allow the confiscation of both
the items and the products of the criminal conspiracy which again has proven to be an
effective deterrent and a significant gain in resources for law enforcement.
We recently changed our bail law by constitutional amendment. We received over
70% voter approval to allow us to increase or even deny bail to people who we have
reason. ..a judge has reason to feel cannot be restrained. ..regardless of the monetary
amount; particularly this is a problem with drug trafficking.
A second goal of the state is statewide investigation, enforcement and prosecution.
We have centralized intelligence. ..We have a statewide system of highway checkpoints to
control road transportation of drugs...
We have a high-level narcotics organization for conspiracy.. .which has been
particularly aided by the cooperation of federal agencies. We also have a program in
cooperation with federal agencies to identify profiles of suspected drug dealers and
organized crime traffickers.
The third area at the state level is eradication. We have had an extensive manual
eradication program, and beginning last year for the first time we used Paraquat where
the scale of the operation is such that it is not feasible to do it manually. In my opinion,
it is appropriate that this be under state control so that all of the legitimate
concerns — environmental, health and otherwise — can be controlled by people who have
appropriate training and supervision for this effort.
And finally, at the state level is an effective education program. ..We're going to be
spending, over the next two years, over $5 million beyond our current expenditures on
drug education programs within our public schools. We think it will be money well spent...
254
APPENDIX A
The Governors' Project
A Program to Cooperate with the
Administration's Effort to Combat
Illegal Drug Trafficking and Organized Crime
January 6, 1983
INTRODUCTION
On November 18, 1982, the National Governors' Association, under the auspices of
its Committee on Criminal Justice and Public Protection, convened an Ad Hoc Group of
criminal justice policy makers and practitioners for the purpose of:
(A) Responding to the Reagan Administration's proposal that a "Governors' Project"
be incorporated as an element of its eight-point attack on drug trafficking and
organized crime; and,
(B) Deliberating future NGA policy in the area of drug trafficking and organized
crime generally.
The Ad Hoc Group was assisted in its efforts by Dr. Nolan E. Jones, staff director of
the NGA Criminal Justice Committee, and staff of the National Criminal Justice
Association under the direction of its executive vice president, R. Thomas Parker, who
served as facilitator for the meeting.
OVERVEW
In October of 1982, the Reagan Administration made two announcements of its
intent to intensify its focus on the drug problem in this country — the first, placing
enforcement efforts in the larger context of the elements required to effect a compre-
hensive campaign to prevent drug abuse and drug trafficking; the second, focusing on
enforcement alone and providing an eight-point program directed specifically at stopping
drug trafficking and destroying the criminal organizations responsible ior the important
and/or production of illegal drugs, their transportation, and distribution.
One element of the administration's eight-point enforcement-oriented program was
a "Governors' Project" described in the October Itt announcement of the same as a "major
project to enlist all 50 of the nation's Governors in an effort to bring about needed
criminal justice reforms." The announcement further described this project, in general
terms, as a vehicle to aid in "coordinat(ing) federal efforts with state and local
enforcement programs"; a source of assistance to the states in developing "resources they
1. An October 5 press release from the White House announced the "1982 Federal
Strategy for the Prevention of Drug Abuse and Drug Trafficking", defining this
strategy to consist of activity in five areas: international cooperation in eliminating
foreign sources of illegal drugs; domestic enforcement efforts directed at halting
trafficking, and destroying organized criminal organizations involved in illegal drug-
related activities; drug education and prevention; treatment of the drug abuser; and,
research on drug abuse.
2. This eight-point program, announced October l^f, encompassed the following: the
creation of 12 regional task forces to fight drug trafficking; establishment of a
Presidential Commission on Organized Crime; a "Governors' Project"; creation of a
cabinet-level Committee on Organized Crime; increased training of state and local
law enforcement personnel; reforming certain federal criminal laws such as the
exclusionary rule to support the crack-down on drug traffickers; an annual report
from the Attorney General on the status of the fight against organized crime; and
the creation through construction and contracting of additional jail space to house
drug offenders.
255
need for a full role"; as an "important forutn for the states to tell the federal government
of their concerns about organized crime and related enforcement problems"; and, as a;
"invaluable supplement to the Law Enforcement Coordinating Committees".
In its efforts to gather further definition from the administration of its intent in
calling for a "Governors' Project", the Ad Hoc Group met with Mr. Richard Williams of
the White House Office of Drug Abuse Policy and Mr. Rudolph Giuliani, Associate Attorney
General, in the course of its November 18 meeting. Mr. Williams deferred to Mr. Giuliani
in the discussion of the "Governors' Project" called for in the eight-point program, but
urged Governors to assume a role in drug abuse prevention encouraging the designation by
the Governor in each state of a prominent individual to serve as the lead prevention
advocate on the behalf of the chief executive of the state.
Mr. Giuliani, in addressing himself to the "Governors' Project", described a
"mechanism" to provide the opportunity for dialogue between the Governors and key
members of the administration on issues relating to drug trafficking and organized crime.
He mentioned specifically the Attorney General of the United States and the Assistant to
the President for Intergovernmental Affairs as two key Administration officials who
should be drawn into such dialogue with the Governors.
Based upon its deliberation of the Administration's call for a ''Governors' Project"
and the references made by the Administration in so doing, the Ad Hoc Group concludes
that the Administration is primarily interested in initiating dialogue between the
Governors and key Administration officials in order to elicit the Governors' support and
cooperation with the recently intensified federal efforts to crack down on drug trafficking
and organized crime.
THE GOVERNORS' PROJECT;
The Ad Hoc Group recommends that the nation's Governors agree to support the
Administration's efforts to crack down on drug trafficking and organized crime but that
such support be premised upon the Administration's full and continuing commitment to
winning the "war on drugs"; assume continued federal leadership and preeminence in
efforts to interdict and eradicate drug supplies; and call for greater sharing of intelli-
gence and federally-controlled resources by federal enforcement officials with their state
and local counterparts.
The Ad Hoc Group further recommends that the "Governors' Project" also include
the following:
• That top White House and Department of Justice officials agree to meet twice
yearly with NGA selected Governors to discuss policy issues of mutual interest
and concern relating to drug trafficking and organized crime; and that the
meetings be held in conjunction with NGA's annual and mid-winter meetings or
other mutually agreed upon times.
• That the Department of Justice be asked to meet with and to include selected
representatives of the nation's Governors on the internal operational working
group responsible for administration of the 12 regional task forces at the
national level; that these representatives be given equal status to the other
members of that body and involved as equals in their decision-making; that
these representatives be state officials actively involved in policymaking and/or
ojjerations in drug enforcement at the state level.
• That in an effort vo insure operational coordination between the federal task
force effort and state and local enforcement programs, each Governor be
advised to appoint a state drug enforcement coordinator to meet on a regular
basis with the lead administering federal official within each of the 12 regional
task force areas which operates within or encompasses, undef its jurisdiction, a
given state. Coordination meetings between all Governor appointed state drug
enforcement coordinators and the appropriate lead federal task force official(s)
(core area) should take place not less than six times per year.
•
That the National Criminal Justice Association, on behalf of NGA, identify
major areas in which reform of state criminal statutes might be undertaken to
support state efforts to combat drug trafficking and organized crime and
develop, for dissemination to the states, a report on drugs and a guide to state
256
executive and legislative branch officials in the formulation of legislation in
those areas.
That the principles in the NGA policy entitled Controlling Abuse and Illegal
Traffic in Narcotics (B-6) and the supporting descriptive NGA Report entitled
Strategies For Drug Control Efforts, together, be recognized as an essential
part of the "Governors' Project"; each state is strongly encouraged to consider,
support and implement all or part of the recommendations which will contribute
to a balanced state-based drug program.
APPENDIX B
B. -6
CONTROLLING ABUSE AND ILLEGAL TRAFFIC IN NARCOTICS
Illicit drugs have contributed substantially to the crime problem in our states.
Recent studies show that 50 percent of all prison inmates used drugs prior to the offense
for which they were arrested. Illegal profits from drug trafficking are in the tens of
billions of dollars annually. States cannot effectively control crime unless the traffic in
illegal narcotics is controlled.
The illicit drug problem goes far beyond state and even national boundaries. I* is an
international concern which can be controlled only if addressed in an international
context. The Administration should consider illegal traffic in narcotics as a crucial
element of foreign policy, especially when negotiating with major source countries.
Individuals who traffic in large quantities of drugs for substantial profit merit
treatment in the criminal justice system significantly different from the common street
user. Court appearance by dealers who make astronomical profits can be assured only by
setting high bail. Fines and prison terms can be effective deterrents if they are severe
enough to counterbalance extensive profits. Forfeiture of any profit realized through
drug trafficking must be a clear consequence of conviction. The Administration and
Congress deserve support for their efforts to stiffen provisions in the U.S. Criminal Code
which apply to illegal traffic in narcotics.
The amended Statute of Posse Comitatus which was signed into law by the President
in December 1981 also deserves support. The military should work with federal, state and
local officials in their efforts to control drug smuggling into the country and drug-related
organized crime.
These efforts must be complemented with a federal, state and local strategical
comprehensive approach to reduce the availability of illegal drugs and the adverse effects
of drug abuse in society. This approach must include international cooperation, drug law
enforcement, education and prevention, detoxification and treatment, and research. The
following points should be considered in developing comprehensive sound policy to combat
drug abuse and trafficking:
• Need for Increased Educational Effort: There must be consistent exchange of
information and ideas among the various disciplines that can have an impact
on consumer demand. The ultimate long term success of drug control efforts
is not possible without a marriage of these disciplines, supported by an
educated and involved public. Therefore each state should consider the
establishment of a Blue Ribbon Statewide Drug Education Commission involv-
ing leaders from the public and private sector.
• Need for Intensified Eradication and Interdiction: Military/Naval Assistance
to State/Local Governments; The federal government has exclusive respon-
sibility for coordinating interdiction of drug shipments from foreign countries
and assisting those countries in the eradication of drugs at the source. This
should be a top priority of the federal government. Also, the Administration is
urged to expand the role of the military forces of the United States in air and
257
sea interdiction efforts. This role should include all regions of the country,
and should represent a more significant effort than presently exists.
• Need for a National Reaction; We must show that this is a very serious effort
to combat drug abuse and trafficking in this nation. Over the past decade,
numerous states have been adversely affected by the growing drug problem.
These states have taken independent steps to combat the problem; however,
their resource limitations and geographic restrictions have hindered their
effectiveness. The federal government, realizing the national ramifications of
the drug problem, has conducted several significant operations which have
lessened these restrictions and limitations, such as the recent Bush Task Force
in South Florida and the creation of 12 regional task forces. The nation'*;
governors appreciate this effort and encourage the federal government to
maintain on a permanent basis the federal resources associated with this
effort.
• Need for a Centralized Information and Intelligence Data Base; Law enforce-
ment agencies involved in drug control have historically been hampered by
lack of accessible and assessable intelligence information relating to illegal
trafficking. A centralized systetn to receive, analyze and disseminate
information among state and local law enforcement agencies must exist if
proactive, non-duplicative and significant targeting efforts are to occur. Such
a system must interact with similar systems in other states and the federal
government.
• Need for Concerted Street Enforcement Activity; Local law enforcement
agencies must provide the immediate response to a variety of community
demands in crime control. It is difficult for those agencies to dedicate already
strained resources to provocative drug prevention and enforcement problems.
Governors and legislators of the various states should apply maximum support
and effort toward increasing resources (personnel and equipment) of local law
enforcement agencies.
• Need for Standard Legislat'on; There exists a great deal of disparity among
the states' drug laws. There is evidence that smuggling organizations have
taken advantage of some states' deficiencies in legal recourse and probabilities
of detection, apprehension and prosecution. Therefore, each state should
establish a legislative committee of prosecutive, enforcement, judicial and
legislative members to examine and develop a comprehensive system of model
and uniform laws dealing with the drug problem. Also, a National Committee
should be created, reporting to the National Governors' Association's
Committee on Criminal Justice and Public Protection. This committee will
develop a comprehensive system of model and uniform laws dealing with the
drug issue.
• Need for Greater Prosecutorial Commitment; Heavy court dockets and broad
responsibilities minimize prosecutors' effectiveness in dedicating resources to
the prosecution of major drug smuggling operations. Alternative approaches
to drug prosecution and greater levels of coordination among circuits dealing
with multi-jurisdictional organizations are needed. Prosecutors should take
steps to expedite drug enforcement cases, as has been successfully ac-
complished in cases involving career criminals. Additional prosecutorial
resources are needed to provide for dedication to prosecution of highly
financed and well defended drug organizations.
• Need for Coordination of Efforts of Local Agencies; There is generally no
mechanism to provide for local/state agencies to pool their resources and work
together on common drug targets. Equipped with the necessary legislation,
agencies can draft contractual agreements to effect "jomt force operations''
or "mutual aid pacts" to expand resource and jurisdictional abilities to attack
drug operatives. States should consider developing the necessary legislation
for a "mutual aid system," whereby law enforcement agencies can contractual-
ly join together and pool their knowledge, resources and skilJs toward
investigatively attacking drug smuggling networks.
These policies are to be included as a part of the report entitled The Governor's
258
Project; A Program to Cooperate with the Administration's Efforts to Combat Illegal
Drug Trafficking and Organized Crime.
The National Governors' Association also wishes to commend the President for his
initiatives to combat abuse and illegal drug trafficking, and organized crime. Further-
more, we support the Presidential initiatives of:
• A Cabinet level Committee on Organized Crime, chaired by the Attorney
General, to review and coordinate all federal efforts against organized crime;
• The Attorney General's annual report to the American people on progress and
needs in the drug fight;
• Additional prison and jail space to complement the need caused by the
creation of the twelve federal task forces; and
• Emphasis on training of state and local law enforcement personnel.
259
j APPENDIX C
Strategies for Drug Control Efforts
In July 1982, at the Annual Meeting of the Southern Governors" Association in Hilton
Head, South Carolina, the southern governors agreed that international drug
trafficking has become an issue of major regional concern. Governor Lamar .\lexander
of Tennessee and Governor Bob Graham of Florida invited govemors and state law
enforcement officials to a special meeting in Nashville, Tennessee to discuss
strategies for handling drug trafficking problems. The results of that meeting, held in
September 1982, were eight policy recommendations for states to enhance drug
control efforts. These recommendations subsequently received unanimous concur-
rence from all participating states.
On October 14, 1982, President Reagan announced his national initiatives to combat
dnjg smuggling and organized crime. These initiatives are consistent with the
recommendations developed by the govemors in Nashville.
An ad hoc staff group of the National Governors' Association (NGA) met in
VC'ashington. D.C on November 18, 1982, to define the role of the Governors' Project
included in the President's initiatives. The group also agreed to work with staff of
Governor Bob Graham of Florida to prepare an implementation strategy- for the eight
policv- recommendations approved by the southern states. On January' 13, 1983,
Commissioner Robert Dempsey of the Florida Department of Law Enforcement
presented an implementation strategy to the ad hoc committee for their review and
comment. The southern govemors wish to express their appreciation to the members
of this committee for their willingness to work on this endeavor.
L'pon adoption of the implementation strategy by the NGA, a steering committee
should be appointed immediately to oversee and ensure implementation. This
steering committee should submit an annual report to the NGA on progress related to
these initiatives.
Both the President's and the govemors' recommendations indicate that it is
imperative that implementation of drug strategies be closely coordinated among the
states and at the federal level.
Executive Summary
The foUcjwing is a plan for implementmg recommenda- ^ Coocened street enforcement activity, urging
uoos for drug control that was drafted bv an ad hoc J stronger suppon for local bw enforcement agencies
group torn the NGA in January 1983 The following eight drug control personnel and equipment;
iiems were identified as needed for bener drug control in
the United States:
4
6 Standard legislation, to be developed in each suce
and through a natiorul commiaee formed for this
purpose,
7 Greater prosecutorial commitment, with the
same pnonrv- given to drug cases as to other priont>'
luiiiiiciii ui uiuc riuDoii cuinmissions in cacn siaie areas; and
and a fedenJiv sponsored national education ,-_. , _ , . .
program. Q Coonlinatlon of efforts of local agencies en
^y abling agencies to pool ir^formation and resources for
Intensified eradication and Interdiction. Le„ maximum effort
military/ naval assistance to state and local
governments, focusing on the destruaion of drugs
at their source, foreign or domestic, and onan ^ ^ . . . , .-
increased military commitment to the interdia.on of ^ach recommendauon is accompanied bv specific sugges-
drugs being imported bv air or sea; "«" ^"' *^'°"* gONemors might take or suppon TTiere
is also a comment on the fiscal impaa of each recommen-
National reaction, encouraging the conunuation of dation and wavs in which this might be minimized
tfie Bush Task Force and the twelve regional task ^ ^^^ „f p„s,dential initiatives that were not among those
^"^"^ developed bv the NGA. but which ne\erTheless deserve
Centralized informatloo and Intelligence data gubernatorial suppon. is included at (he end of this
base, combining and coordinating data from local. document
sute. mulu sate and federal sources.
260
The Governors' Issues
INeed for Increased
Educational Efforts
The problem of dpjg abuse in our society is related to so
many bctors thaqp caruiot be successfully addressed by
any single discipline. A consistent exchange of informa-
tion and ideas among the various disciplines that can
affect consumer demarui does not exist. The ultimate
long-term success of drug control efforts is not possible
without a marriage of these disciplines, supported by an
educated and involved public.
Recommendation
Each state should consider the establishment of a Blue
Ribbon Statewide Drug Education G>minission involving
leaders from the public and private sectors. This
Commission should consist of high-level representatives
from a cross seaion of disciplines including law
enforcement, prosecution, judicial, educational, medical,
legislative and citizen/parent/young people groups.
Implementation Strategy
Q Each governor should consider appointing representa-
tives from a cross section of the public and private
sectors to a Statewide Drug Education Commission. It
is imperative that the membership comprising this
Commission be commined to and aggressive toward
accomplishing the goals established by this recom-
mendation. The Commission should direct efforts
toward:
- Private Industry: Providing crime-specific informa-
tion, identifying industry prevention programs and
fiinding sources, and integrating mutual industry/
citizen.' enforcement activities.
- Public Awareness and Concern: Coordinate and
organize citizer«' groups and programs^ develop
citizens' prevention program modgk; de\'elop media
campaigns' "technology transfers"; and integration
with civic and church groups, industry, education
and enforcement. The Commission should consider
the 'Texas War on Drugs " program, which has
established itself as a model in this area.
- Public School Education: Assist the Department of
Education in developing and presenting more
relevant, positive and proactive curricula in law-
related education.
- Law Enforcement. Community Organizations arut
Neighborhood Coordination: Provide training to bw
enforcement personnel in order to promote more
effeaive integration of enforcement agencies with
community educational activities. Existing crime
prevention and other local networks should be
recognized and used.
a Governors should urge that a national effort, ade-
quately staffed, be undertaken to develop program
models and information services for the individual
□ Governors should urge that the federal government
develop and implement a national education program.
In this regard, the President has recommended that
emphasis be placed on training of state and local law
enforcement personnel. Governors should be encour
aged to support this initiative.
Fiscal Impact
The fiscal impaa of educational efforts can be minimized
by turning to the private sector for executive resources,
fund raising activities and creative talent. Membership on
the Blue Ribbon Commissions would be voluntary. States
could also save rcsoures by promoting drug education
through existing citizen networks, such as those address-
ing crime prevention.
2 Need for Intensified Eradication
and Interdiction: Military/Naval
Assistance to State and Local
Governments
The federal government has exclusive responsibilit>' for
coordinating interdiction of drug shipments from foreign
countries and assisting those countries in the eradication
of drugs at the source. As a result of intensive lobbying,
three significant developments have occurred over the
past year that have had a positive impact on eradication
and interdiction efforts: ( 1 ) relaxation of the Posse
Comitatus doctrine, allowing the miliury to provide
assistance to civilian law enforcement agencies; (2) the
removal of the Fttry Amendment to the Foreign
Assistance Act, which prohibited foreign govemments
from receiving assisunce from the U.S. government if
herbicides were used to control illicit drugs, and (3) the
recent efforts made by the national administration to
suppon eradication efforts in foreign countnes.
Recommendation
The federal government should adopt, as its top drug
control prionry, the eradication of illicit drugs in source
countries and the interdiction of drugs leaving those
countnes.
The United States should continue encouraging foreign
govemments to employ eradication methods, including
herbicidal applications, and should continue to absorb or
contribute to the costs of some of the more critical
programs in significant source countries In addition, the
militarv- forces of the United States should be called upon
to make a ma/or commitment to increa.se their level of
suppon in the interdiction effort.
261
Implemcntatloa Stntegy
D GoMcmors should consider adopcmg a resolution to
Gjngrtss and the President to lu^e the federal
government:
- to keep as one of its top drug control pnonty
programs the eradication of drugs at source coun-
tnes and to continue to provide adequate funding in
subsequent years
- to de\«lop improved eradication techniques.
- to continue to conmbuie to the cost of these
control efforts.
- to continue to ericouiage other countries to utilize
eradication methods.
□ Keeping in mind the tremendous increase of domesti
cally grcA^-n manjuana and clandesiine manufiurture of
dangerous drugs, governors should support eradication
effbtrs and the development and application of
inncAauve measures within their states to combat
these activities.
a Gcnemots should urge the nauonal administration to
e>qnnd the role of the military forces of the United
States in air and sea interdiaion efforts This increased
role should include all regions of the country
a Governors should encouiage their sute and local law
enforcement agencies to work closely with and seek
assistatKe from the military forces of the United States
and develop plans with military forces to coordinate
efforts against drug trafficking.
O Governors should etKOuragc their respeaive congres-
sional delegations to provide sufficient funding to the
militan,' to offset the costs im-olved in panicipating in
civilian drug control efforts.
□ The governors should consider having the National
Guard and all other approprute resources work with
state and local law eniforcement agencies in drug
interdiction and eradication programs.
RacaJ Impact
Sates implementing eiadication efforts will experience
costs Cooperation with federal eradication efforts is
encouraged to minimize those expenditures. Costs may
also be associated with National Guard activities aimed at
assisting state drug law enforcement These costs can be
minimized, or possibly eliminated, by conduaing
Natiorul Guard drug enforcement activities in conjunaion
wnih tegular Guard training e.xercises.
%J Need for A National Reaction
Over the past detade. numerous sutes liave been hun bv
the growing drug problem. These states have taken
independent steps tc i ombat the problem, however, their
resource limiutions and geographic restrictions have
hindered the states' effeaiveness The fiederal govern
ment. realizing the national ramifications of the drug
problem, has conducted several significant operations that
have lessened these restriaions and limitaiioas, such as
the recent Bush Task Force m South Flonda and the
creation of twelve regional task forces.
Recoaunendatlon
The federal government should be encouraged to
maintain on a permanent basis the federal resources
associated with the onginal Bush Task Force and twelve
new task forces
Implementation Strategy
0 Each governor should urge his her respective congres-
sional delegation to maintain and continue support of
the onginal Bush Task Force and the twelve new
regional drug task forces.
D The governors should urge that top White House and
justice officials meet twice yearly with seleaed
govemors from the NGA to discuss policy issues of
mutual interest related to drug trafficking
a Govemors should suppon the Presidential Commis-
sion on Organized Crime, which will be in operation
for three years. Membership of this commission
should include a representative of the NGA.
a Govemors should request the Department of Justice to
include state representatives having policymaking or
operational responsibilities in drug enforcement on
the internal group responsible for adminisienng the
regional task forces. Further, that these representatives
have appropriate decisionmaking status in the group
within parameters of state related responsibilities.
Further, that each governor should appoint a state drug
enforcement coordinator to meet with the lead
administrator of the respeaive task force on a specific
periodic basis.
O The govemors should communicate with their respec
tive state and local law enforcement officials to aaivelv
suppon the President's initiative
D Govemors should consider aaively soliciting public
suppon of these initiatives through speeches, media
and other public information resources
O Govemors should, through their respective legisla
tures. ensure that adequate resources are available for
states to coordinate effeaiveh' with and complement
the federal task force efforts.
Fiscal Impact
Each state must analyze its investments to ensure that it is
taking a balanced approach to drug law enforcement .\
aate's investment prionties should reflect the seriousness
of the drug problem in tliat sute
262
4 Need for A Centralized Informa-
tion and Intelligence Data Base
Law enforcemeni agencies involved in drug control have
historically been hampered by lack of accessible and
assessable intelligence informauon relating to illegal
trafficking. A centralized system to receive, analyze and
disseminate information among state and local law
enforcement agencies must exist if proaaive, non-
duplicauve and significant targeting efTorrs are to occur.
Such a system must intetaa with similar SN'stems in other
sates and with the federal government.
Recommendation
Each state must establish a centralized drug-related
intelligence system. To be effective, tlie individual
systems must ensure input from and response to local
enforcement agencies and should interact consistently
with appropriate state and multi-state systems and the
Drug Enforcement Administration's El ftiso Intelligence
Center (EPIC).
Implementation Strategy
□ Governors should direct their primary suie drug
enforcement agency to begin the development of a
sutewide drug-related intelligence system, with analy-
sis and targeting capabilities. These systems should be
joined with the other appropriate state, multi-state and
fedeial intelligence systems.
- Sates that possess such systems should share
concepts, ideas and technologies with other states.
- States should ensure that these systems provide the
iriformation to all local bw enforcement agencies
within their respeaive states.
- The individual states should ensure that their
systems are linked with appropriate systems in other
states, as well as with multi-state and federal
intelligence systems.
a Governors should recommend that their appropriate
law enforcement agencies de\elop a mandatory drug
statistics reporting system relev'ant to the measurement
of the drug problem and the impact of enforcement
effons.
Hscal Impact
Costs associated with establishing or enhancing state
intelligence systems will van- from state to state.
Purchasing a new computerized system, irKluding both
hardware and software, is an expensive process. Where
computer systems are already in place, such as in those
states where responsibility for collecting UCR data is at
the state level, costs may be limited to de-zeloping
necessary software. Some personnel enhancements may
also be necessary.
5 Need for Concerted
Street Enforcement Activity
Local law enforcement agencies must provide the
immediate response to a variety of community demands
for crime control. It is difficult for those agencies to
dedicate already strained resources to proactive drug
prevention and enforcemeni problems. Howe\'er, the real
direct and indirect drug related crimes must be dealt with
constantly as a part of the required law enforcement
response to the community This response is as
adamantly demanded as are responses to violent crime
areas.
Recommendation
Governors and legislators of the \-arioiis states should
apply maximum suppon and effort toward increasing
resources (personnel and equipment) of local law
enforcement agencies.
Uuplementacion Strategy
□ Governors should consider alternative funding options,
such as private sources (foundatic.is, etc.) or via
legislati%-e mechanisms such as fine and forfeiture
allocations specifically earmarked for drug control
enforcement programs.
D Gov'emors should promote adequate federal and state
suppon of local law enforcement agencies. Because
the drug problem is one of national scope, federal
resources are needed to suppon critical or extraordi-
nary state and local enforcemeni efforts Governors
should also stress to local leaders their suppon for the
allocation of needed resources to conduct drug
enforcement programs, loint operations and coopera-
tive efforts.
Fiscal Impact
State government statistical systems must provide gover-
nors with adequate assessments of local drug trafficking
problems. Resource suppon will \ary from state to state
depending upon the magnitude of the problem, i.e..
border state, source state, major distribution point, etc
Governors should assess e.xjsting investments to ensure
they are addressing the problem as a priont\' matter. In
particuli-. border states must dedicate a portion of
available new resources to the pnontv- problems of drug
trafficking and distribution.
263
O Need for Standard Legislation
There is great dispanrv- among the sutes drug laws There
IS evidence that smuggling orgonizauons have taken
advanuge of some sates deficiencies in legal recourse
and probabilities of detecnon. apprehension and
prosecuuon.
RecoauDendadoii
Each state should establish a legislative comminee of
prosecutive, enforcement, ludicial and legislative
members to examine and develop a comprehensive
svstem of model and uniform laws dealing with the drug
problem The sute bar issociations and law schools
should be included in this effort This conuninee can be
a separate entiry-. or a pan of an existing sutewide drug
X'uvirv-
Implementation Strategy
a The Governors should consider the establishment of a
committee opeiaung within their rcspcaive states to
examine existing legislation and determine that state's
needs
□ A National Comminee should be created, reporting to
the NG\ GDmminec on Criminal Justice and Public
ProteCTion This committee will develop a comprehen-
sive svstem of model and uniform laws dealing with
the drug issue and will disseminate the model drug
legislauve package back to the respeaive states for
their considerauon.
n The Goviemors should sec that the federal government
assign appropriate representauves to this National
Comminee to promote uruformitv' of state and fedeial
laws and serve as a mechanism to transmit states
cofKems to the federal legislative process
Q The Nauonal Comminee should consider at least the
following Items for the model legislative package:
- Racketeer Influenced and Corrupt Organizations Act
(RICO) providing for the prosecution of entire
cnminal organi2ations and civil forfeiture of real and
personal propertv' used in the course of, or acquired
with the proceeds of. their criminal activities.
- Drug Trafficking Lou's providing appropriate sen-
tences for drug violators and a graduating scale of
penalties commensurate with the seriousness of the
viobtion. and permming considerauon of foreign
felony drug convictions in sentencing drug law
violators
- Vtretaps: providing for court-authorized intercep-
tion of telephonic communications between drug
bw V lobtors.
- Mutual Aid: providing for definitions of interjurlsdic-
uonal authoniies. liabilities, agreements and re
source exchanges within and among the vanous
states.
- Mandatory Reporting of Currency Transactions
requiring financial institutions' reporting of certain
transaaions to the states The statute of limitations
must provide sufficient time to allow full use of
complex law enforcement techniques before arrest
- Conspiracy Prmtsions providing for charging those
who direct or participate in drug smuggling ventures
to be sentenced as principals
- Mandatory Reporting of Drug Statistics to a central
entity both within the states and at the federal level
to reduce duplicate reporting and to establish a
valid data base for problem assessment and resource
allocation
- Contraband and Asset Forfeiture Reform with
application of fines and forfeitures being applied
directly to law enforcement programs, i e., through
trust funds.
- State Department of Reienue Files Access: providing
for access, vvith appropriate safeguards, by bw
enforcement agencies.
- Vitness and Victim Protection: providing authority
and funding required and making it an offense with
significant punishment to annoy or iniure a witness
or viaim involved in the criminal lu-stice process.
- Bail Reform: to more certainly immobilize drug
traffickers with less jvxlicial discretion, i.e., where
smugglers are known to travel internationally or
where violence is predictable.
D Governors should urge tfut the Congress remove
restnaions. with appropriate safeguards, that prevt;nt
the Internal Revenue Service from sharing intelligence
regarding criminal activities with state and local
authorities.
D The President has asked the Congress to continue its
efforts to seek passage of essential cnminal law
reforms The specific bws mentioned were bail reform,
forfeiture of assets, sentencing reform and amendments
to the exclusionary rule The governors should
consider supporting the Presidents initiative in seeking
passage of these essential reforms and ensure that
these issues are coordinated with similar state legisb
tion reform efTotts.
Fiscal Impact
There are minimal state costs associated with this activitv.
264
7 Need for Greater
Prosecutorial Coaunitment
Prosecutors are hindered by heavy court dockets and
broad responsibilities that make it difficult for them to
dedicate resources to the prosecution of major drug
smuggling operations. Alternative approaches to drug
prosecution and better coordination among circuits
dealing with multi jurisdictiorul organizations are needed.
Prosecutors should take steps to expedite drug enforce
ment cases, as has been done successfully in cases
involving career criminals. Additional resources are
needed for prosecution of highly financed and well-
defended drug organizations.
Recoaunendatlons
Governors of the various states are urged 'o eiKOurage
prosecutors to include drug cases as a pan of their
lurisdiction's priority prosecution/career criminal
programs.
Governors should develop programs that will anraa and
retain competent prosecuting anomeys.
Implementation Strategy
D Governors should seek strong commitments from their
respective legislatures to ensure that prosecutive
offices are given the necessary support to recruit and
retain qualified prosecutors for specific assignment to
drug cases.
D Governors should urge that state prosecutive officials
coordinate with federal task forces and U.S. Attomeys
to minimize duplicative efforts and maximize the
impact of prosecutive efforts. This effort should
include the newly established Law Enforcement
Coordinating Comminees (LEGO and other recog-
nized processes created to prc-ide muiiial federal,
state and local assistance.
□ Governors should encourage state and local prosecu-
tors to assume leadership in the development and
coordination of priority drug investigative efforts and
priority prosecution strategies, and urge implementa-
tion of special judicial processes that guarantee fair
and speedy adjudication of major drug cases.
Fiscal Impact
Direa state jurisdiction over prosecution responsibilities
vary from state to state Where career criminal programs
have been implemented throughout the state, major drug
cases should be handled on the same expedited basis as
a way of establishing pnonties and minimizing expendi-
tures associated with prosecution. This effon should
include development and implementation of procedures
for handling prosecution of both career cnminal and
maior drug trafficking cases on a priority basis. Where
prosecution is a shared responsibilitv' of the state and
local governments, all levels should work together to
expedite the prosecution of career criminals and drug
trajficking cases Most costs associated with a new
emphasis on the prosecution of drug cases will be for
personnel.
8 Need for Coordination of
Efforts of Local Agencies
There is generally no mechanism to provide for
local/State agencies to pool their resources and work
together on common drug targets. Equipped with the
necessary legislation, agencies can draft contractual
agreements to effect "joint force operations" or "mutual
aid pacts ' to expand resource and jurisdictional abilities
to attack drug operatives.
Recommendation
The varioiis states should consider development of
necessary legislation to develop a 'mutual aid system ',
whereby law enforcement agencies can contraaually join
together and pool their knowledge, resources and skills
toward investigatively attacking drug smuggling networks.
Implementation Strategy
O The Governors should coasider, as referenced in the
legislauve reform section, the development of 'mutual
aid " legislation to ensure that the law enforcement
agencies within and among the various states can
contraaually join together to effect joint force
opeiations
O The Governors should ensure that the lead state law
enforcement agency coordinates with local law
enforcement agencies so that their operational con
cems and initiatives are effectively coordinated with
federal task force efforts.
Fiscal Impact
Development of "mutual aid" systems will require a
dedication of time by existing personnel and minimal
suppon resoLirces.
Additional Presidential Initiatives
In addition to the recommendations made by the
President that have been included in the previous
discussions, the following presidential initiatives are also
worthy of strong support by the NGA
O The President has called for a Cabinet level Commmee
on Organized Cnme, chaired by the .-Mtomey General,
to review and coordinate all federal efforts against
organized cnme
n The President has requested thai the Anomey General
prepare an annual report to the Amencan people to
report on progress and needs in the drug fight.
D The President has requested that additiorul pnson and
pil space be provided to meet the need caused by the
creation of the rwelve task forces.
a The President recommends that emphasis be placed
on training of state and local law enforcement
personnel
265
gepartmtnl of |uslite
APPENDIX D
FOR IMMEDIATE RELEASE AG
TUESDAY, MARCH 1, 1983 202-633-2007
Attorney General William French Smith today issued the
following statement 5
The National Governors' Association deserves the hearty thanks
of the American public for the far-reaching policy positions
unanimously adopted in its plenary session today in support of the
Reagan Administration's new initiatives to combat drug trafficking
and organized crime.
Together, the positions form an overall program that recognizes
the partnership approach necessary to make major inroads against
crime — especially drug trafficking and the enormous aunount of
violent crime it causes.
This partnership of the states and the Federal government is an
integral element of the program announced by President Reagan last
fall to take unprecedented steps against organized drug trafficking.
Now that the Governors' Association has responded in kind, we
have an opportunity of historic dimensions in the struggle agai.ist
crime and lawlessness.
On Sunday, I participated in the discussions of the Associa-
tion's Committee on Criminal Justice and Public Protection, citing
the key portions of the President's new initiative — including Drug
Task Forces, a Presidential commission on organized crime, expanded
training at a Federal facility for state and local enforcement
personnel, and major criminal law reforms.
I also discussed in detail the Governors Project — which is at
the heart of the President's efforts to develop new levels of
cooperations with the governors and the states.
The Governors Project provides a forum for the Governors to
give us their ideas and concerns.
It will help to coordinate the efforts by Federal law enforce-
ment agencies with their state and local counterparts.
25-694 0-84-18
266
And it is now operational. Already, meetings have been held,
more meetings are scheduled, and a steady flow of information
between the Federal government and the Governors has begun
including the first copy of a weekly organized crime report from the
Justice Department to the Governors that was distributed on Sunday.
The Governors Project has been set up at the highest levels in
the Justice Department — headed by Assistant Attorney General
Jonathan Rose, with Edward McNally as project director. Their job,
the job of the entire Department, is to serve the Governors. It is
an exercise in efficiency, not bureaucracy.
All of us in Federal law enforcement are delighted at the steps
now taken by the Governors' Association. We are particularly
pleased at the Association's own Governors Project, developed to
parallel the Federal initiative.
The Governors have pledged to cooperate with the Administra-
tion's drug trafficking and organized crime program and have
commended the President's creation of it.
We applaud the specific steps taken by the Governors —
including proposals to develop uniform state drug laws, greater
street-level enforcement, greater commitment for prosecution
agencies, and more coordination among local and state agencies. The
Governors' commendation of the Administration's efforts to
strengthen the U.S. Criminal Code is especially critical and we will
call on their support for our renewed Federal reform efforts in the
current Congress.
The President and his Administration are fully committed to
winning this war on drugs and organized crime.
During our discussions on Sunday, 1 was impressed with the
depth of the commitment by the governors who aired their views —
particularly Charles Robb of Virginia, the Criminal Justice
Committee chairman; and Robert Graham of Florida, Lamar Alexander of
Tennessee, and Richard Thornburg of Pennsylvania.
By working together, we can make a difference — at the
Federal, state and local levels. And that can mean significant
improvements in the level of safety for all of the American people.
267
Responses of Governor Robb to Questions of Senator Laxalt
discuss the use of private enterprise dm prisons.
Several state prison systems are involved in some type o£ prison industry.
The sizes and types of industry differ. The organizational structure and training
procedures also vary according to the industry. Some states are entering into
agreements with certain industry whereby the industry provides training and
equipment to the inmates, and the state is responsible for management and inmate
supervision. A good example is the Stillwater prison in Minnesota, where prison
industries are supported by the Control Data Corporation. These industry programs
are operating within prison walls.
There are other prison industry programs where inmates cire released to work
outside in industry. The prison administration continues to supervise inmates.
These programs usually allow inmates to leave the prison walls for work during the
day, and return for supervision at night and all non-working time. Of course, the
classification of these inmates is very low, so they are not a threat to the
community. A good example of a program operating on this scale is in the state of
Kansas.
Another use of private enterprise is through contractual services. Some
state prison systems operate food services and medical services on a contractual
basis. Service providers sometime use inmate help, but they are paid wages
comparable to those paid outside of the prison walls. Pennsylvania uses private
contractors to provide food service in some of their penal institutions.
There have been discussions in some states about leasing private property for
use as prison facilities, but 1 am not aware of any major initiatives in this area.
However, it's worth exploring and has potential for saving resources, esjjecially on
cost of property and some building and equipment.
2. SHOULD SENTENCING COMMISSIONS BE UNDER THE ADMINISTRATION OF
THE JUDICIARY OR EXECUTIVE BRANCH OF GOVERNMENT?
The structure of a sentencing commission will more than likely be
determined by the state legislature and become a function of state law. In some
268
states, Minnesota for example, the state law not only defines sentences, but also
determines the capacity of the state penal institution. In this circumstance, the
sentencing commission can operate knowing that bed space is available for a
particular sentenced felon.
Commissions operating under the judiciary usually attempt to structure
sentences within the confinements of present state law so that there is more
uniformity in the administration of sentences, and some rationale for deviations.
This is accomplished through regular meetings of the Commission. Maryland's
Sentencing Commission is administered by the judiciary.
Governors have generally been involved by appointing task forces, as I have
done in Virginia, to examine the overall sentencing policy in the state and make
recommendations for change. These task forces should be balanced with judicial,
and legislative representation, as well as the private sector and citizen
representation —providing a broad base for promoting the recommended changes of
the task force.
3. SHOULD FEDERAL COURTS BE ALLOWED TO REVIEW STATE COURT
DECISIONS REGARDING HABEAS CORPUS PROCEEDINGS?
The Writ of Habeas Corpus should not be denied to anyone, and any attempt
to do so would probably be unconstitutional.
However, title 28 of the United States Code could be amended to
accommodate some of the habeas corpus concerns. The Criminal Justice Report of
the National Association of Attorneys General recently pointed out several sections
of title 28 that could be amended to accommodate these concerns. The first
proposal would be to amend 28 U.S.C. section 224* to prevent litigation of issues in
federal court if not properly raised in state court proceedings. This would codify
the Supreme Court's decision in Wainwright v. Sykes, 433 U.S. 72 (1977), which
barred the litigation of issues not properly raised in state court unless "cause and
prejudice" is shown for failing to comply with state court procedures. Requiring
that issues must be raised in the state court system, absent special circumstances,
is the only fair and sensible approach to the administration of the criminal justice
system.
Another proposal would amend title 28 U.S.C. to create a reasonable
269
limitation of time within which to bring a habeas corpus petition. This amendment
is essential in order to bring finality to judgments of state courts. Frequently,
prisoners wait many years before bringing a habeas corpus action seeking to set
aside the judgment and sentence. In such instances, witnesses have died, or other
unusual circumstances render the state incapable of refuting the prisoner's
testimony and as a consequence, he/she prevails.
Finally, title 28 U.S.C. could be amended to prevent federal courts from
holding evidentiary hearings if the state courts have fully and fairly determined the
evidentiary issue. This proposal would help eliminate duplicative hearings-
<». WHAT IS THE DIFFERENCE AND RATIONAL BEHIND "GUILTY BUT MENTALLY
DLL," AND -GUILTY BY REASON OF INSANITY WITH AUTOMATIC
COMMTTMENT?"
Under the verdict of "guilty but mentally ill," a jury holds a person
responsible for his actions under the law, yet recognizes that the individual is
mentally ill. The individual is sentenced under criminal law for his action. Once
the individual is incarcerated, an evaluation is performed at corrections intake
center to determine mental status. If the person is found in need of treatment, he
is sent to the mental hospital for such time as needed for treatment during the
process of serving time for the offense he committed. If during the sentence the
individual is found to be mentally sound again, he is transferred to the department
of corrections to serve out the sentence.
Once the individual has completed his sentence, he is released under the
same provisions as other parolees. However, if there is reason to believe that the
individual continues to suffer from a mental illness, then the state can enter civil
proceedings to have the individual committed or continued in the state mental
institution.
"Guilty by reason of insanity with automatic commitment" would allow an
individual to be committed to a mental institution indefinitely for a particular
offense. The individual becomes a ward of the state mental hospital for
observation and treatment in accordance with hospital procedures.
Some legal scholars argue that the verdict of "guilty by reason of insanity
with automatic commitment" could violate the civil liberties of the committed
individual. For example, an individual found "guilty by reason of insanity" could be
committed for an indeterminate number of years, whereas the normal sentence
would be limited by criminal law.
Under "guilty but mentally ill," the individual would serve a specified
sentence either in the mental hospital or prison, or both.
270
Senator Laxalt. Our next witness will be Attorney General Zim-
merman of Pennsylvania on behalf of the National Association of
Attorneys General.
General, we are delighted to have you with us and pleased to
hear your testimony.
STATEMENT OF HON. LeROY S. ZIMMERMAN, ATTORNEY GENER-
AL, COMMONWEALTH OF PENNSYLVANIA, ON BEHALF OF NA-
TIONAL ASSOCIATION OF ATTORNEYS GENERAL, ACCOMPA-
NIED BY MRS. McINTYRE, DEPUTY ATTORNEY GENERAL, COM-
MONWEALTH OF PENNSYLVANIA
Mr. Zimmerman. Mr. Chairman, thank you.
It is my pleasure to appear before the subcommittee on behalf of
the National Association of Attorneys General and testify in con-
nection with and in support of the Comprehensive Crime Control
Act of 1983, S. 829.
I appear on behalf of my colleagues, on behalf of the National
Association of Attorneys General and in support of a number of the
specific aspects of this particular package. My testimony reflects a
background of 20 years as a district attorney in Pennsylvania and 2
years as Pennsylvania's first elected attorney general and statuto-
rily defined chief law enforcement officer.
I share your concerns and the concerns of this subcommittee
about this particular legislation. I know my colleagues do that as
well.
I would like to incorporate, at this point, for the record my writ-
ten statement so that I can, in order to cut down on the time, sum-
marize it and make specific comments in certain areas and certain-
ly be available to answer any questions, Mr. Chairman.
Senator Laxalt. Surely. Our staff has had an opportunity to ex-
amine the full statement. I have seen most of the summary. It is
extraordinarily well done. I appreciate it.
Mr. Zimmerman. Thank you.
With your permission I would also like to incorporate the testi-
mony of my colleague, the attorney general from Florida, Jim
Smith, who testified last year on the urgency of the need for
habeas corpus reform. He did a very scholarly analysis that I think
is still on the record and I would like to incorporate it here with
your permission, as well as the resolutions of the National Associ-
ation of Attorneys General in this area.
Senator Laxalt. It will be deemed incorporated.
Mr. Zimmerman. Thank you, Mr. Chairman.
The legislation proposed deals with the specifics and the critical
areas that concern all of us in law enforcement across this Nation.
The problem that we have working in the States and the local gov-
ernments is dealing with these things on a day-to-day basis and
dealing with what has developed, and what I characterize as a
crisis of confidence in the criminal justice system of our country.
We hear that recent statistics establish the fact that there has
been a decline in the crime rate, major crime areas in this country,
and certainly I cannot quarrel with those statistics. However, my
concern is that we have developed over a period of time what I
characterize as an acquiescence quotient in the people of America
271
in connection with crime. Americans have developed a tolerance
for crime, across the board and almost now a willingness to accept
a certain percentage of crime in our economic centers, on the
streets of our Nation, and in other places as well. I perceive that as
a very dangerous problem that confronts us in this country today.
That is why I urge that this particular S. 829 be expedited because
it deals with areas that have, in my judgment, created this acquies-
ence quotient on the part of the people in this country.
Senator Laxalt. Is much of that tolerance. General, due to the
fact that we in law enforcement on every area simply are not doing
our job? Is that part of the problem?
Mr. Zimmerman. I think that is a part of the problem, Mr. Chair-
man. I think that we went in this country from a syndrome of "I
won't or don't want to be involved" to, unfortunately, my acquies-
cence quotient, "Why get involved because really there is nothing
they can do about it?" They being all of us in the Congress, in the
States and in law enforcement as well.
Bail reform provided for in this package is an extremely impor-
tant aspect of it because it would provide that judges can now con-
sider the dangerousness of the criminal in considering bail and the
amount of bail rather than the traditional test of whether or not
this person is going to show up at trial. And that has been, I think,
one of the major areas of concern on the part of the everyday
person. They go to court, they come home from court. There has
been a conviction and they see the culprit, the defendent, in the
same supermarket that they are in after a conviction because he is
out on bail, or after an arrest because he is out on bail. I think bail
reform is — and I comment on it first because of my concern in that
particular area. I think the Crime Control Act would make crime
control a reality rather than just another theory that we deal with
day to day and that the people of this Nation feel that we are deal-
ing with in a theoretical sense. It brings it down, to a common de-
nominator that I think people understand in this particular legisla-
tion.
The National Association of Attorneys General supports a
change in the exclusionary rule. Evidence that is gathered in good
faith should be allowed, especially if it was obtained within the
scope of a lawful warrant issued by an independent detached mag-
istrate. Because we have seen time and time again that these kinds
of releases, these kinds of discharges, these kinds of exclusions of
important evidence, continue to erode the confidence of people in
our system of justice.
Senator Laxalt. Have you had a lot of problems in Pennsylva-
nia, as most States have had, with respect to the exclusionary rule?
Mr. Zimmerman. Certainly, Mr. Chairman. I could sit here after
20 years as prosecutor and 2 years as attorney general and give
you story after story, and I would be happy to provide some of that
and augment the record for the information.
Senator Laxalt. I think it might be helpful to put some flesh
and blood on the bones of this exclusionary rule. I think it helps
the members of my subcommittee who have had experience with
prosecution and who think that maybe we are overstressing the im-
pK)rtance of change because the rule affects only exceptional situa-
tions. And we are really playing with horror stories. I happen to
272
believe that it has become almost a pattern in some of these areas,
and if people like you in the field can point out specific instances of
the effects of the exclusionary rule — the present application of it —
it would be very helpful.
Mr. Zimmerman. We will be happy to provide some of that.
Mrs. Mclntyre, my colleague, the deputy attorney general, has
been with me in the district attorney's office for many years. Again
we have faced this problem and we will be happy to supply some
additional information to the subcommittee.
[Subsequent to the hearing, Mr. Zimmerman supplied the follow-
ing information:]
Impact of Exclusionary Rule on Criminal Cases
Case 1015-82. — On February 16, 1982, Pennsylvania narcotics agents and local
police officers served an arrest warrant in Bristol Township, Bucks County, Pennsyl-
vania. The agents arrested the target individual and then proceeded to conduct a
search of the arrested individual's person pursuant to lawful arrest. Inside the ar-
rested person's right front pants pocket was a small plastic bag containing a white
powder suspected to be methamphetamine. There were also in plain view additional
controlled substances and several deadly weapons displayed on the walls. Present at
the time of the execution of the arrest warrant were two apparent motorcycle gang
members. The agents immediately field-tested the white powder found on the arrest-
ed individual which indicated positive for methamphetamine. Based upon the drugs
seized from the individual's person and the positive field test as well as the other
controlled substances in plain view, the agents secured the area, returned to a dis-
trict justice's office, and received a search warrant for the residence of the arrested
individual. Seized pursuant to this search warrant was an additional ounce of meth-
amphetamine and some marihuana. On September 11, 1982, a suppression hearing
was held in Bucks County criminal court relative to the execution of the search
warrant referenced above. The reason given by the judge for the suppression of the
evidence was that even though a field test was performed with positive results on
the methamphetamine found on the arrested individual's person, not enough was
left for the Bucks County crime lab to positively identify the remaining amount as
methamphetamine. The judge held that the fact that one ounce of methampheta-
mine was found in the residence following execution of the search warrant had no
bearing upon the charge for possession.
Case 2084-82.— On October 2, 1982, a Pennsylvania narcotics agent culminated an
investigation begun approximately one month earlier. The agent had previously
purchased one ounce of cocaine for $2,100.00 from the subject. On October 2, 1982,
the agent was to purchase one-quarter pound of cocaine for $6,800,000. When he ar-
rived at the subject's Delaware County residence, with the subject were two addi-
tional unknown individuals who approached him as he entered the residence in an
attempt to search him for weapons. The agent indicated he had a weapon and that
he would place it in his car and return immediately. It was requested that the agent
be allowed to test a sample of the cocaine before the transaction was completed. The
agent remained seated in the living room area while the subject went into the kitch-
en area. When the subject returned from the kitchen area he placed a clear plastic
bag containing a white powder on the table and removed a nail clipped from the
bag. When asked where the rest of the cocaine was, the subject indicated that it was
"all here," meaning in the house. The field test of the drug proved positive for co-
caine. Discussions began concerning the price of the cocaine. Finally, the agent iden-
tified himself as an officer and arrested the subject and the two unknown individ-
uals. The arrested individuals were read their rights after which the agent request-
ed the remainder of the quarter pound of cocaine be presented or the agents would
search the kitchen area where the subject went to get the above referenced sample.
The subject indicated he did not want his mother's home torn up and the agent told
the subject he could consent and show the agents the location of the quarter pound.
At approximately 3:25 p.m. the subject verbally consented and instructed the agent
to come upstairs. The subject went to his bedroom and pointed to the bed saying,
"it's under there." The agent looked under the bed and observed one large plastic
bag containing approximately four ounces of white powder later identified as co-
caine, a small plastic bag containing a small amount of white powder later identi-
fied as cocaine, two TV magazines with white powder on them and a spoon. Again
the subject was read his rights and the agent removed the above-referenced items
273
for custody. A suppression hearings was held on January 18, 1983 in Delaware
County court. The trial judge suppressed the quarter pound of cocaine found in the
subject's bedroom in that court believed that the subject's consent to search was not
voluntary. However, the quarter pound of cocaine was not suppressed as to the
other subjects who were charged with conspiracy with the primary subject in that
the court beleived they had no expectation of privacy in the subject's home; there-
fore, they had no legal standing concerning suppression of the quarter pound of co-
caine.
Case 504J-77.—A Pennsylvania narcotics agent prepared a search warrant on
June 1, 1977 which stated that he received information from a confidential inform-
ant who saw, at the place to be searched, a very large quantity of marihuana and
methamphetamine in possession of the target. The informant stated that he ob-
served the target selling marihuana and methamphetamine but the informant
wished to remain anonymous because of fears for his personal safety. The informant
indicated that he saw numerous people buying drugs and that he himself had in
fact very recently purchased one ounce of marihuana which he turned over to the
agent. The informant indicated that the ounce of marihuana was purchased from
the target at the location stated in the search warrant. The place described in the
search warrant was a garage. Found in the search of the garage was a large plastic
bag containing a large quantity of loose marihuana, a large cardboard box contairi-
ing a yellow plastic bag containing a large quantity of compressed bale-form mari-
huana, a smaller cardboard box containing a white plastic bag full of marihuana
seeds, a large Ohaus scale inside a cardboard box, a white cabinet inside the tool-
room containing assorted prescription-type drugs, two clear plastic bags containing
quantities of marihuana, counter-balance scales, and a strainer containing white
powder residue. On August 23, 1977, a suppression hearing was held in Westmore-
land County court. Defense argued that the agent had not sufficiently established
reliability of the informant and that the address on the face of the search warrant
was incorrect. Defense counsel based his later argument on the case of Common-
wealth V. Muscheck, 334 A.2d 248 (1975), which deals with the issue of propriety of
address in a warrant. A portion of the opinion indicated that unless the location of
search was clearly distinguished from the residence of the owner, the affidavit was
ambiguous and would fail. The evidence was suppressed despite the large seizure of
drugs by the officers.
Commonwealth v. McAfee, 230 Pa.Super. 336 (1974). Although a search warrant
was properly signed and sealed by the district justice, the affidavit of probable cause
attached thereto was not so signed and sealed. This defect is fatal and required the
suppression of all evidence seized during the execution of the judicially authorized
warrant.
Commonwealth v. Gates, 4 D&C 3rd 239 (1977). Evidence obtained as a result of a
search of a residence, authorized by warrant, was suppressed because the warrant
application failed to specify that the evidence to be seized would be removed or de-
stroyed if not seized forthwith.
Commonwealth v. Lovette, 498 Pa. 665 (1982). Placing the defendant and his com-
panions in a police vehicle for the purpose of transporting them to the scene of the
crime, without their consent and without exigent circumstances to support such
action, constituted an illegal arrest without probable cause and required suppression
of the evidence linking the culprits to the crime.
Commonwealth v. Ball, 254 Pa.Super. 148 (1978). Police officers searched a truck
alleged to have been involved in a hit and run accident. The truck was parked some
150 yards from the defendant's home. The court suppressed the evidence seized on
the basis that at the time of the search the vehicle was not so mobile that the op-
portunity to search was fleeting.
Commonwealth v. Boyer, 236 Pa.Super. 214 (1975). Police, relying on confidential
information relayed over the state police teletype, stopped a vehicle on the Pennsyl-
vania turnpike which matched the reported description. Observation of the interior
of the vehicle revealed packages of heroin. This evidence was suppressed because
the police officers did not possess sufficient probable cause to believe the confiden-
tial information was reliable.
Commonwealth v. Novick, Pa. No. 14 M.D. Appeal Docket 1982, (filed
April 26, 1983). Relying upon the existence of a Mutual Aid Pact, a police officer
arrested an arsonist and burglar in a contiguous jurisdiction. The Pennsylvania Su-
preme Court affirmed the suppression of the defendant's confession and seized phys-
ical evidence upon a determination that the Mutual Aid Pact has no force and effect
because of improper execution, thus rendering the arrest illegal.
274
Mr. Zimmerman. You know, the focus has been wrong, Mr.
Chairman. The focus has been on what the police are doing wrong,
how they have not dotted their i's or crossed their t's in all of this
when, in fact, the focus ought to be on the fact that this evidence
was presented by a police officer who really in the overwhelming
number of cases intends to do the right thing, to follow the law
where he can understand the law, and that is another area of con-
cern as well.
Senator Laxalt. The record should note. General, the arrival of
someone whom you know as a prosecutor also in the State of Penn-
sylvania, and the junior Senator from the State of Pennsylvania,
Senator Specter.
Senator Specter. Thank you, Mr. Chairman.
With that opportunity, I will make a very brief statement.
I regret that I could not be here at the start of the testimony of
Attorney General Zimmerman, but there is a very hotly contested
issue at this moment in Veterans Affairs on a major matter that I
had to be present to make a quorum for and to attend to.
Senator Laxalt. Everything in Veterans Affairs is hotly contest-
ed; is it not?
Senator Specter. Well, there are very few items on Capitol Hill
which are not hotly contested.
Senator Laxalt. I think you are right.
Senator Specter. That is both the vein and the exhiliration of
our purpose here. But there is no subject with greater importance
on my mind than crime. Senator Laxalt and I have worked on this
for the past 2 years and, as you may note, Mr. Chairman, and you
alluded to, Attorney General Zimmerman and I have been working
in this field since the mid 1960's. He was a very distinguished dis-
trict attorney of Dauphin County when I was the DA in Philadel-
phia and we have worked on many, many projects, invariably in
harmony. He brings great experience and great wisdom to this
field, has a very distinguished record as district attorney, and even
a more distinguished record as State attorney general conducting
investigations and prosecutions and doing some pioneering work as
the first elected attorney general in Pennsylvania. So I want to be
here to present him to this panel, albeit late, but insert it in the
middle of the record, and to participate in the hearing.
Thank you.
Mr. Zimmerman. Thank you. Senator Specter.
Mr. Chairman, very recently I had the privilege of testifying
before Senator Specter in connection with a number of the matters
that we are talking about here this morning, and specifically the
Senator's career criminal bill which is important to all of us in
Pennsylvania. And at that time I underscored the need for many of
the areas that we are talking about here. Senator Specter and I
have worked together and we in Pennsylvania, of course, know
well that Senator Specter has made his case as a friend of law en-
forcement and enjoys an enviable record as a former prosecutor
and a distinguished Member of the Senate. I thank you for being
here. Senator.
Senator Laxalt. 1 might say that as far as those of us on the sub-
committee and the full committee are concerned, we recognize that
275
he has the most recent experience, but he is fast becoming the
guru in this whole area.
Senator Specter. It is worth a lot, Mr. Chairman. Thank you.
Mr. Zimmerman. Senator, an area that we strongly urge move-
ment on is the reform of Federal intervention in State proceedings.
1 suppose if I were to characterize two areas, among others, that
cause a great deal of concern on the part of people that talked with
me and whom I have listened to as I have traveled across Pennsyl-
vania and across this Nation as chairman of our Subcommittee on
Criminal Justice, they are the lack of finality of judgment and
delay in a criminal justice system. Two areas of genuine concern
that people simply cannot understand why they cannot be changed.
Well, I strongly urge that this particular legislation would make
a significant change by cutting off the time period of attack in the
Federal courts where State matters have been ventilated, have
been considered and have been finalized. There must be some point
in time where there is finality of judgment if we are to punish
criminal offenders and articulate the fact that what we are doing
in jails and prisons today is in fact punishment because there
cannot be an awareness on the part of the individual where he re-
lates the crime that he has committed to the punishment unless
there is that finality of judgment. In the system, perhaps more im-
portantly in that person's mind. So I suggest that this area, the bill
would limit the time within which habeas corpus relief can be pur-
sued and bar Federal intervention in cases, as I said, that have
been fairly and fully adjudicated in our State courts.
Senator Laxalt. You think our proposal is strong enough?
Mr. Zimmerman. Yes, I do, Mr. Chairman. Yes, I do. I think it is
2 years after finality of judgment in a State appellate court pro-
ceeding, I think it is strong enough. I think there has to be that
opportunity but I think that there has to be a period which is
closed, and I think this does do that.
Senator Specter. Mr. Chairman, if I might ask a question.
Senator Laxalt. All right.
Senator Specter. Supreme Court Justice Powell spoke out on a
related subject on the application of capital punishment saying
that there ought to be finality and inclusion of the appellate proc-
ess.
How would we structure that if legislative change could accom-
plish that, Mr. Attorney General, in your judgment?
Mr. Zimmerman. Well, we in Pennsylvania have a new capital
punishment statute that provides for automatic review of all State
convictions where the death penalty is imposed in a limited
number of situations by the Pennsylvania Supreme Court within a
prescribed time period. When that is done, I think that the way to
address it would be a narrowing of the time period, limited to capi-
tal offenses in order to put finality.
I agree with the concern of Justice Powell about people being on
death row an inordinate period of time, and this is happening,
throughout the country.
Senator Specter. How can we deal with it? Can the Congress
constitutionally legislate a time limit for all Federal appeals on
State court cases?
276
Mr. Zimmerman. Well, Senator, I am reluctant to render an
opinion as attorney general at this point in time. There are some
complexities and I would anticipate that certainly there are some
areas that would require constitutional analysis, but I am not sure
of the mechanics. But I think that conceptually that is the way to
approach the problem.
Senator Specter. As I read Justice Powell's concern, he does not
like the repeated appeals. But how can you stop them? If somebody
is raising an allegation of constitutional magnitude and goes before
a Federal district court judge, he is right on the same point that
you are, and the district court judge has to consider it. Then there
is an appeal to the court of appeals and an application to the U.S.
Supreme Court, and then it starts all over again. How can you stop
that?
Mr. Zimmerman. I Ihink that the Congress can address that so
long as the law takes into account a full complete fair ventilation
of these cases on appeal through the State system and at least once
through the Federal system. I cannot see that going beyond that,
requiring an endless stream of Federal review is necessary.
Senator Specter. Well, under Pennsylvania law, as you say, the
State supreme court has an obligation to review every capital case.
Mr. Zimmerman. That is a new statute, Senator. We do not have
a track record on that but it is going to be interesting to see how
our supreme court in Pennsylvania addresses that and how
promptly our supreme court
Senator Specter. Well, you could work it out so that every case
would be reviewed as in Pennsylvania law. You could say then it
would be mandatory review. Perhaps the simplest way to handle it
is to require mandatory review by the Federal system. But some-
body has to make allegations fair. The courts cannot go through a
record and speculate about what the defendant wants to raise. The
issue is if the defense attorney raises allegations of error and it
goes through the Federal system and then comes back on the brink
of execution, raising new points. How do you stop that?
Mr. Zimmerman. Well, I think you stop it if the Congress says
there is a mandatory review of every conviction where the death
penalty is imposed. It must take place within a certain period of
time.
Senator Specter. And all issues not raised are being waived?
Mr. Zimmerman. Are waived.
Senator Specter. The doctrine on the waiver of the death penal-
ty of a constitutional witness is very tough.
Mr. Zimmerman. I know it is, and it is going to be interesting to
see how our court addresses it in Pennsylvania in years ahead with
the number of cases that we have.
Senator Laxalt. I think a lot of it is going to rest necessarily in
the mind set of the Federal judges, whether they can proceed with
these summarily, with dispatch, if there are no seconds, or if they
can fool with the judges as many of them have been doing. That
has caused a lot of the problems that we have.
Mr. Zimmerman. I think that is correct, Mr. Chairman, and I
think it is true, as Senator Specter points out, we talk about the
mandatory review, if everyone knows that there is going to be a
review, the machinery gets into process very quickly, and I think
277
that there are fewer cases where you are going to be concerned
about the doctrine of waiver in capital cases because they are going
to be brought together and focused on earher, and perhaps to a
conclusion.
The forfeiture provisions of the statute proposed, I think would
provide a model for the States, would allow transfer of the seized
assets to State and local agencies which would help considerably in
our antidrug trafficking efforts. I think that the new efforts being
made by the President's Drug Task Force across the Nation, and
prosecution, the interdiction efforts, especially the south Florida
task force's success, all have focused the people's attention on the
dimensions of the drug trafficking problem in this Nation, and that
we are confronted with big business. We are confronted with people
who are willing to accept the risk of arrest and conviction and even
jail for the high profit margin that is in major drug trafficking en-
terprises today. And where we can, as this bill provides the oppor-
tunity to get the assets, whether it is a car or a yacht, whether it is
a condominium or whether it is tracing proceeds through those
assets, it does, for the first time, make a strong dent or an impact
in the pocketbook of the drug traffickers, the economics of it. And
that is where we should be focusing.
Senator Laxalt. Where are we at the State level in this whole
general area?
Mr. Zimmerman. Well, I think you will find a variety of patterns.
I have just proposed a strong forfeiture provision in the law in
Pennsylvania. I think that right now in Pennsylvania it is very dif-
ficult to seize an asset unless you seize it when it is directly in-
volved or used in the commission of a crime in drug trafficking,
and there is no tracing provision for forfeiture of assets that are
the economic gain that accrues to an individual involved. So I
think you will find a patchwork or quiltwork pattern, and that is
my point. I think that this legislation can be a model for the States
to follow in developing forfeiture statutes, strong forfeiture statutes
throughout the Nation.
Senator Laxalt. Let me ask you as a practical matter, as I asked
Governor Robb.
What are the practical chances, assuming we go forward here, of
inducing the States much as we did in the commercial areas? Re-
member, we went to uniform laws and negotiable instruments.
What are the realistic chances of inducing 50 rather independent
legislatures to accept our guidance and move along in areas like
forfeiture?
Mr. Zimmerman. Well, I think that obviously there will be prob-
lems. You know as well as I, but I think that there is an area of
common concern that perhaps my colleague, Edwin Miller, the dis-
trict attorney, may be addressing in his testimony here this morn-
ing, and that is a concern about whether or not these assets are
going to go to the Federal, the States, or to the local governments.
And I think that that concern could be the nexus for developing a
Federal statute. It might be of some interest to the States.
Senator Laxalt. Tell me this. Obviously just as a political
matter, if you were going to attempt to get uniform legislation, I
would think that the thrust would have to come from the DA's and
278
the attorneys general essentially, and certainly the Governors, but
you primarily.
What do you read within the institution, within your association,
if you will, as an attorney general, as to moving forward in this
fashion?
Mr. Zimmerman. Oh, we feel very strongly as an association, in
support of a strong forfeiture bill in the hope that it would be a
model for the States.
Senator Laxalt. That second step is being considered once we
move that they would politically support this move forward in an
attempt to get uniform legislation.
Mr. Zimmerman. Yes, sir. The narrowing of the insanity defense
as incorporated into this package is important to us. A limit to
those unable to appreciate the nature or wrongfulness of acts, and
I believe that is the ALI test. We do not have it in Pennsylvania.
We still have the M'Naghten Rule in Pennsylvania. But it is im-
portant that this limitation, this narrowing of that insanity de-
fense, be enacted into law and that the burden of proof be placed
where we feel it belongs, as attorney general, on the defense.
The National Association of Attorneys General has urged and
continues to urge an additional verdict, guilty but mentally ill. Par-
enthetically, I say that the State of Pennsylvania, has just enacted
a guilty but mentally ill piece of legislation to provide a fourth
option for jurors. As you know, it is one of the important focal
points of this kind of legislation that a jury is given that additional
option.
I think that it is important on that issue to make one more
point, that you have the opportunity with the fourth category, the
fourth option, guilty but mentally ill, for the jury to incorporate
treatment which is necessary for mental illness, and we all agree.
But also punishment as well at some other time perhaps.
Senator Laxalt. What do we presently have on the State level,
yours and others, if you know, for the civil commitments of Federal
prisoners who have been found not guilty by reason of insanity? Is
that machinery in place?
Mr. Zimmerman. In Pennsylvania it is.
Senator Laxalt. Is it working?
Mr. Zimmerman. Well, it is too soon to tell against the backdrop
of the guilty but mentally ill type of verdict. But we have had long-
standing machinery operating in Pennsylvania for these kinds of
commitments.
Senator Laxalt. Would you be able to deal with the Hinckley
case in Pennsylvania — with that type of factual situation — for civil
commitment?
Mr. Zimmerman. No, we would not have been. We could not
have.
Senator Laxalt. Other States?
Mr. Zimmerman. Patchwork, quiltwork. That is why the attor-
neys general^have advocated a strong position on this fourth — we
debated this very heavily in the aftermath of the Hinckley case,
which I am sure you will agree has generated a tremendous degree
of heat and not a lot of light after it. But I think we are headed in
the right direction and I would be opposed to abolishing the insan-
ity defense. I will not get into all the background of that.
279
My final point, Mr. Chairman, is continued funding for State and
local anticrime programs, especially those that focus on the control
of violent crime and repeat offenders, victim witness protection in
crime protection, whether or not it is discretionary grants or block
grants. As I have said before in conversations with Senator Specter
and in my testimony, it is essential that Federal funding come fast
to the States and to local governments. We need it to preserve the
current programs that have proved to be worthwhile and to devel-
op the incentive for new ones as well.
In conclusion, Mr. Chairman, I am pleased to have this opportu-
nity to testify on behalf of my colleagues, the National Association
of Attorneys General, and we stand ready to support this subcom-
mittee's efforts and provide any additional information we can in
order to help get this legislative package moving. We can talk
about a strong defense on our shores, but if we cannot make our
streets safe, we face a plethora of criticism out there on the part of
the people and they are not safe. And there is that fear that per-
vades our senior citizens across the economic lines and across geo-
graphical boundaries of this Nation. And I urge that you continue
your efforts as chairman of this subcommittee to make this pro-
posed legislation a reality.
Thank you.
Senator Laxalt. Thank you very much, General Zimmerman.
You have been very helpful.
Let me ask you a question. Within Pennsylvania, what is the
degree of cooperation between the Feds and the States, State law
enforcement people? I come from Nevada where it has not always
been that wholesome. More often than not, we have conflicts be-
tween State officials, IRS, and the FBI and the rest. How does it go
in Pennsylvania?
Mr. Zimmerman. I think it is vastly improved, Mr. Chairman. I
think the traditional boundary lines and battle lines that have sep-
arated and sometimes caused contusions or aggravations in the
past are being healed, and there is a more positive progressive
movement underway in Pennsylvania. And I think I see it across
the country. And I must say, in large measure, Mr. Chairman, that
is due to the creation of the law enforcement coordinating commis-
sions that now exist across the country that include district attor-
neys, attorneys general, U.S. attorneys, and various other persons
in the enforcement area as well. They are in place, they are opera-
tive and we are meeting. In fact, yesterday I had the opportunity to
meet here in Washington with my colleagues, D. A. Miller, the
president-elect, and other persons in the law enforcement field,
Federal, State and local, and we are talking about problems and we
are proposing solutions to some of these disputes that exist out
there.
Senator Laxalt. That is really the name of the game. If these
various people can talk with one another and exchange their views
and arrive at common solutions, that will overcome a lot of the
structural problems every time, will it not?
Mr. Zimmerman. Yes, sir. The competition has to be together
against the criminal element and not within the law enforcement
family in this country.
280
Senator Laxalt. Let me ask you a somewhat technical question,
and if you are not prepared to answer, just say so.
But would you consider a search conducted pursuant to a war-
rant that is later deemed to be defective to be a good faith effort?
It is something that is going to arise, and we have been kicking
it around lately and we do not quite know at this point how to
treat it or whether to treat it at all.
Mr. Zimmerman. Would you repeat that question for me?
Senator Laxalt. Would a search conducted pursuant to a war-
rant later found defective, be considered a good faith effort to bring
within the rule?
We would think so, we would think so in the subcommittee, but
you tell us
Mr. Zimmerman. Yes, I think it would be. I think it would be.
Senator Laxalt. We think so.
Mr. Zimmerman. I think that is really the essence of what we
are saying.
Senator Laxalt. We are trying to get away from the technical
aspects, the technical deficiencies, and get to the substance of the
effort, are we not?
Mr. Zimmerman. Yes.
Senator Laxalt. Well, let me ask you one last question.
You have seen the package, you know where we are trying to go.
Do you see any major defect in our approach here?
Mr. Zimmerman. No, not in your approach. I think that you have
focused on the areas of concern, the areas that need quick move-
ment, and if we can get it moving, I think there is going to be
strong broad-based support from the attorneys general, and I am
sure the district attorneys. Mr. Miller is going to address that fact
here or that part here this morning. I cannot see why it cannot
move and why it cannot be successful.
Senator Laxalt. Do you see any undue infringement on the lib-
erties of our citizens?
Mr. Zimmerman. No; I think the proposal is sensitive to the con-
stitutional dimensions and certainly it would seem to me that al-
though there would be challenges, certainly, they can pass constitu-
tional muster.
Senator Laxalt. We appreciate that because we have attempted,
I know Justice has and certainly we have in the subcommittee, to
be sensitive to those concerns.
Mr. Zimmerman. We appreciate that.
Senator Laxalt. Senator Specter.
Senator Specter. Thank you, Mr. Chairman. Just a couple of
questions, Mr. Attorney General.
You and I have discussed a proposal which I have introduced, S.
889, in March, which is a matter looking to the future where an
effort is being made to direct some very substantial Federal funds
to the fight on crime. The statistic frequently used is that last year
there were 23,000 Americans who were murdered on the streets
whereas we lost nobody, overseas, at a time when we are in a de-
fense budget of $240 billion. We are not quarreling with the neces-
sity now, or debating whether for fiscal 1984 it is going to be $270
or $280 billion, and that more ought to be given to what many of
us call domestic defense. The proposal embodied in S. 889 is an
281
effort to allocate 1 percent of our Federal budget somewhere in the
neighborhood of $8 to $10 billion a year to fight crime over the
course of the next 10 years, really a massive serious attack to allo-
cate resources of $100 billion which many of us believe to be com-
mensurate with the scope of the problem.
I think it would be useful to supplement your testimony on the
specific package which Senator Laxalt has developed with you to
get your general comment on, that kind of approach, although not
necessarily the specific contours of S. 889, because that is a subject
of substantial revision and modification.
Mr. Zimmerman. My response. Senator Specter, obviously would
reflect my personal views and not the views of the national associ-
ation because we have not considered that proposal as of this time.
I said in the past, in my conversations with you, and I will say
today that I support that concept. I think it is extremely important
that that kind of focus, that kind of dimensional attitude be ad-
dressed and articulated to the people in the country as we focus on
crime. Because we have gone through a plethora of all kinds of ef-
forts, but unless we make that kind of commitment, that kind of
dimensional commitment to fight on domestic defense, as you have
characterized it, and when we do that, I think we make an an-
nouncement to the people of this country that we are really serious
about fighting against crime and we are going to attack it as we do
other things that are of high priority in this Nation.
Senator Specter. One specific subject and that will conclude my
questioning — on the issue of prison construction. This is a subject
that has been supported by many of us here, the chairman of the
full committee and the chairman of the subcommittee. Senator
Dole has been an advocate for many years, Senator Heflin has and
so have I.
In full committee yesterday, I proposed an amendment at the re-
quest of Senator Dole, on behalf of the two of us, to add $100 mil-
lion for prison construction in the Justice Assistance Act, a modest
program which we talked about before.
Mr. Zimmerman. Yes.
Senator Specter. And last week I offered an amendment to the
budget resolution to encourage State court judges to sentence
under habitual offender statutes embodied in S. 58. I propose that
if State court judges would impose life sentences or long-term sen-
tences for habitual offenders, the Federal Government should un-
dertake the responsibility to construct those prisons. The Budget
Committee is a hard place to get enough votes. There were 17 votes
in favor, and I believe the sixties or seventies opposed. It was a
Thursday afternoon and it is difficult to table Thursday afternoon
and go into Friday. But it was a start and it attracted attention.
This whole process of legislative change is a long-term process.
I would be interested in your comments, Mr. Attorney General,
on two things. First is the desirability or the necessity of Federal
help in prisons and second, any special incentives that you think
would be provided by saying to State court judges if you sentence
under the habitual sentence, you will not have any worry where
they are going to be placed.
25-694 O - 84 - 19
282
Mr. Zimmerman. Let me answer the last question first. And I am
speaking on behalf of myself and not the National Association of
Attorneys General.
I think that it is irresponsible for those of us in law enforcement
in this country to talk tough about mandatory sentences, talk
tough about putting people behind bars, and to convict them unless
we take the responsibility for taking the initiative to provide the
essentials of carrying out the sentences, whether you are talking
about the State or the Federal sentence. The kinds of sentences are
important to the States.
We in Pennsylvania have just finished debating, deciding and en-
acting into law a limited sentencing program that will escalate the
population in Pennsylvania for the next 7 years. I am told that as
of the end of 1982 there are 400,000 persons behind bars in this
Nation, the highest that it has been in a long time. I think that the
kind of sentences that you are talking about. Senator, are neces-
sary and acceptable to put this program into reality. We have done
that in Pennsylvania, I am proud to say, that tie into our manda-
tory sentencing program a per capita expenditure program for ad-
ditional prisons to carry out these sentences. That is the kind of
help that the Federal Government would fashion and provide to
States.
Senator Specter. Thank you very much, Mr. Attorney General.
Senator Laxalt. Just one last philosophical observation.
Senator Specter and I have discussed these matters and will con-
tinue to do so. And the thought of earmarking 1 percent of our ef-
forts here to really get at crime in this country is appealing when
you are talking about $8 to $10 billion. But the fact is that we have
thrown substantial money to other areas of domestic concern like
poverty and education, and I would like to feel that that has result-
ed in some dividends.
If I thought that the expenditure of $20 billion would markedly
reduce crime in this country and make our streets safer, I would be
right in front of the lines, but I have a basic reservation that our
throwing money, even at this very serious problem, is going to do
the job. It would seem to me that much of the problem rests in
legal loopholes which we as lawyers create as well as the mind set
of judges at both the State and the Federal level. I just wonder
really whether or not as a practical matter this is the way to go?
Mr. Zimmerman. Mr. Chairman, I think part of the answer to
your question is in the question itself as you phrased it.
We have in the past thrown those moneys into those kind of
problems, only to see little if any result.
I think that the kind of dimension that you are talking about,
the 1 percent in and of itself articulates implicit need for a very
comprehensive analysis and a focus on certain limited areas, vio-
lent crime, organized crime, professional criminal activities and, by
the way, I personally, as Senator Specter knows, define that a bit
differently than organized crime. The professional criminal, in my
opinion, burglary rings are all over the place, people who are will-
ing to take that risk get caught and convicted because they know
the profit margin is there. If we can produce attention in those
areas, not just throwing it in, I think we can see positive results.
But the fact that you announce that kind of dimension for the Con-
283
gress is what is significant to people in this country because it will,
for the first time, just to pose one thing, domestic defense to na-
tional defense and will be very positive and very positively re-
ceived.
Senator Specter. Let me followup with just one more question,
Mr. Chairman. Is it going to do any good to spend that money? The
program that I envision focuses on the career criminal. There are
two efforts. One is to prevent criminals and the other is to separate
the career criminals that are in existence. It focuses on rehabilita-
tion of first and second offenders. We turn out functional illiterates
without trades or skills, and it is no surprise that they come back
once they become career criminals. It focuses in society for long pe-
riods of time, up to life in jail. The major problem in this country
today dealing with the 200,000 career criminals is that there is no
place to put them. Jails have increased 42,000 last year so they are
now in excess of 430,000 people in Federal jails. And just to con-
struct the prison space for 200,000 would cost between $10 billion
and about $50 billion. We cannot begin to deal with this career ele-
ment unless we have space to separate them. All of those men and
women do come into the system, and we have a chance to put them
away.
My question to you, Mr. Attorney General, is would we achieve a
beneficial effect if we focus on the career criminal and try to
devote 1 percent of our effort to that? One of the important things
that LEAA has done is to identify career criminals, bringing that
term into the lexicon. I would be interested in your observations on
Senator Laxalt's question as it would focus a real attack on the
200,000 career criminals in the country.
Mr. Zimmerman. Senator, I think you are absolutely correct
when you say that you have placed in the lexicon of law enforce-
ment the career criminal and the program involving career crimi-
nals funded by LEAA's. One of the few but very few.
I think we have to focus on the career criminal. I do not know if
I undeistand your question. You are saying 1 percent would relate
totally to career criminals?
Senator Specter. Not totally because there is too much more.
But that would be the main focus. My main focus is on that group,
preventing their becoming career criminals, or once they incarcer-
ate them and throw away the key.
Mr. Zimmerman. And incorporated in that kind of question
would be a willingness to separate the juvenile from the adult of-
fender. I think we have developed in this country, by the way, a set
of career juvenile offenders and I think that that would be an im-
portant focus as well. Whether you are talking about career crimi-
nals, career juvenile offenders, but in concept, yes. Senator, I think
that would have to be a high priority in the 1 percent.
Senator Laxalt. Thank you very kindly, gentlemen.
While we are discussing this. Senator Specter, perhaps you could
include in the record, if you have not already, what part these
200,000 career criminals play in the total crime rate— you gave me
that number and I thought it was rather interesting.
Senator Specter. Mr. Chairman, these 200,000 career criniinals
are said by the experts to commit as many as 300 robberies or
burglaries a year. These are men and women who are in operation
284
every night and they commit more than 70 percent of the robber-
ies, burglaries, and major crimes that are reported. Those are the
statistics. I think Attorney General Zimmerman can corroborate
them.
Mr. Zimmerman. Yes, I can, and I would add one other thing,
Mr. Chairman, if I may.
Consistent with what we have been talking about in the last few
minutes, and that is the Federal program for surplus properties to
State prison use, that is important as well, the National Associ-
ation of Attorneys General supports that concept to be continued,
while we, unfortunately, debate and decide, these important pro-
posals. As the Senator has pointed out, the streets are filled every
night with career criminals assaulting and terrorizing people of
this Nation, and it is tragic today that the constitutional rights of
the law-abiding citizens of this Nation have been infringed to the
extent that they feel and they believe, and I go back to my acquies-
cence quotient, that they cannot work or even worship where they
will without that kind of fear pervading. That is why I urge dili-
gence and fast pursuit in the proposals that you have before you.
Senator Laxalt. Thank you veiy kindly. Attorney General. You
have been very helpful. We will continue to be in touch with you,
you can be assured of that.
Mr. Zimmerman. Thank you very much. Thank you, Senator
Specter.
[The prepared statement of Leroy Zimmerman follows:]
285
Prepared Statement of LeRoy S. Ziwerman
Mr. Chairman and Mambars of the Criminal Justice Subcommlcta*
Ic Is with plaasura chac I appear before the Subcommittee
on Criminal Law to present testimony on the Comprehensive
Crime Control Act of 1983, S.829. I appear before you on
behalf of the National Association of Attorneys General
to support the Association's stand on specific aspects of
Che 1983 crime package. X would note that X had Che
recent opporcunlty to present testimony before the Honorable
Arlen Specter, Senator from Pennsylvania and member of
Chls subcommiccee, concerning proposed career criminal
leglslaclon. At that time, X expressed support for a
Justice AsslsCance Act, because of the very urgent need
for federal assistance to state and local law enforcement
agencies in the war against crime which is being waged in
the alleys and streets of our communities. As a criminal
prosecutor of years standing, I have seen the toll the
rising crime rate has exacted from our economy, our
pursuits of happiness, our freedom from fear, our mobility,
our traditional patterns of living.
When introducing the Comprehensive Crime Control Act
in the Congress, Senator Thurmond noted that crime,
"particularly violenc crime, drug trafficking and organized
crime -- is one of the major concerns of the people of the
United ScaCes" and that "crime and the fear it generates
are equal in importance to the issues surrounding national
security and the economy." I echo the Senator's concern
but add that what we are confronted with today is the
acquiescence quotient in the formula of our criminal
justice system that law enforcement and the citizens of
chls country must overcome. Too frequently people
accept as a fact of life that there will always exist
286
a certain percentage of crime in Che streets, in government,
in the market place and, adjust their lives accordingly.
This acquiescence quotient occurs because, in my opinion,
the criminal justice system has not kept pace with the
times. The law enforcement community has not been as
innovative and creative as has the criminal community.
Innovation and creativity are apparent in the
legislation you are now considering. I urge you, as the
chief law enforcement officer of the Commonwealth of
Pennsylvania and as a spokesman for the National Association
of Attorneys General, to move with all deliberate speed
to make crime control a reality, not another theory.
Specifically, the National Association of Attorneys
General supports federal bail reform. Most federal, state
and local bail decisions are based solely on the likelihood
that the defendant will appear for court for his next
scheduled proceeding. However, since the rate of recidivism
for individuals released on bail is extremely high, consid-
eration must be given to the dangerousness of the defendant
and the risk to the community should he be released on
bail pending trial. Legislation which requires that judges
consider the danger that an offender poses to society in
addition to risk of flight factors in deciding the
appropriateness of bail is essential as a response to
the rising numbers of crimes committed by persons released
on bail. Reform of bail procedures in the area of narcotics
abuse and control must also be considered.
The exclusionary rule has surely outlived its
effectiveness. In a formal statement presented to this
subcommittee last week, the United States Department of
Justice urged the exclusionary rule not be applied in
cases in which law enforcement officers who conduct a
search acted in a reasonable good faith belief that their
actions were lawful.
287
The fundamental and Legiclmace purpose of che
•xclualonary rule, to deter illegal police conduct and
promote respect for the rule of law by preventing illegally
obtained evidence from being used in a criminal trial,
has been eroded by action of the courts barring introduction
of the truth, however important, if there is any investiga-
tive error, however unintended or trivial, where constitu-
tional violations have occurred. The remedy for such
errors must be proportional to the magnitude of the
violation. Evidence, we submit, should not be excluded
from a criminal proceeding if it has been obtained by a
law enforcement officer acting in a reasonable good faith
belief that the evidence was obtained in conformity with
the Fourth Amendment to the Constitution. This is
particularly true if the evidence was obtained pursuant
to and within the scope of a warrant which was issued
by a neutral and detached magistrate.
The Comprehensive Crime Control Act takes a giant
step toward "reform of federal intervention in state
proceedings" and will return a measure of certainty to
the criminal justice system. Public confidence in the
efficiency of the system is sorely tested by the lack
of finality in criminal cases, by the never ending
availability of open courts within which to pursue
repetitious and frivolous claims for relief from punishment.
No place is this lack of finality so apparent than in the
broad availability of-.the writ of habeas corpus. The
expansion of the writ and the way in which federal courts
have accepted the invitation to use the writ to review
•cate court Judgments have resulted in misuse suid abuse
of the writ.
In a statement on April 18, 1983 concerning the
.-denial of certiorari in the case of Spalding v. Aiken,
...U.S. , No. 82-663, Chief Justice Burger cogently
288
recognized the need for habeas corpus reform when he
said:
The time has come to consider
limitations on the availability
of the writ of habeas corpus
in federal courts, especially for
prisoners pressing state claims
which were fully ventilated in
state courts.
and
Claims presented by way of habeas
corpus petitions many years after
conviction impose especially
heavy burdens on the prison system,
on society and on the administra-
tion of justice. Our willingness
to entertain these late claims
tells prisoners that they need
never reconcile themselves to
what has happened: They need
never "make peace" with society,
learn a new way of life, or
attempt to build a realistic
future. Our society's constant
willingness to reopen cases
long closed tells the public that we
have no confidence that the laws
are administered justly.
We urge broad reform of federal habeas corpus procedures
and support the legislation which establishes a restricted
time period within which habeas relief can be pursued, and
bars federal intervention in state court judgments when
full and fair adjudication was had.
Finally, I speak in support of Title IV - Forfeiture;
Title V - Insanity Defense and Title VIII - Justice
Assistance.
Criminal forfeiture is an effective means of
preventing drug traffickers from profiting from their
Illegal activities by ensuring that illegally generated
property will not remain in the hands of convicted
criminals. Title IV would facilitate the ability of federal
prosecutors to recover money from drug traffickers and
would serve as a useful model for state legislatures
contemplating similar legislation. Importantly for the
states, the provisions in Title IV, amending the Tariff
289
Act of 1903 which would authorize the transfer of
forfeited property to any state or local law enforcement
agency which participated directly in any acts which
led to the seizure or forfeiture of property, would serve
to enhance significantly both state and local drug law
enforcement.
The National Association of Attorneys General supports
the narrowing of the insanity defense as promulgated in
Title V by limiting the defense to those who are unable
to appreciate the nature or wrongfulness of their act;
placing the burden on the defendant to establish insanity
by clear and convincing evidence; preventing expert
testimony on the ultimate issue of the defendant's state
of mind and establishing procedures for the civil commitment
of persons found not guilty by reason of insanity.
The Association would urge, however, the establish-
ment of an additional verdict of guilty but mentally ill
with the burden resting on the defendant to prove the
mental illness.
The National Association of Attorneys General is
on record as supporting continued federal funding for
successful state and local anti-crime programs. We take
no position, however, regarding the internal organization
within the Department of Justice.
The need for this funding on the state and local
level cannot be seriously questioned. The direct burden
for the enforcement of criminal laws falls squarely on
state and local governments. The continued high incidence
of crime makes this burden intolerable. State and local
law enforcement efforts are threatened with suffocation
unless additional resources in the form of federal
financial assistance become available. Such resources
should focus on high priority programs for control of
violent and repeat offenders, victim/witness protection
and crime prevention.
May I conclude by encouraging swift congressional
action on this vital legislation. The criminals are not
sitting back waiting to see what plans are being considered
to curtail their activities. No, they are on the streets
every day and night in every city, town and village, plying
their nefarious trades. This crime package is innovative.
It can make a real difference in the fight against crime.
The package contains not mere statutory changes but provides
enforcement tools, tools which will mean something to the
cop on the comer and the citizens he is there to protect.
290
Senator Laxalt. Mr. Miller, welcome. We appreciate your being
here. We are sorry to have taken so long but we lawyers tend to
absorb a lot of unnecessary time.
Our next witness for the record is Edwin L. Miller, Jr.
STATEMENT OF EDWIN L. MILLER, JR., SAN DIEGO COUNTY DIS-
TRICT ATTORNEY, PRESIDENTELECT, NATIONAL DISTRICT AT-
TORNEYS ASSOCIATION
Mr. Miller. Thank you, Mr. Chairman.
Senator Laxalt. Are you the new president or president-elect?
Mr. Miller. I am the president-elect of the National District At-
torneys Association. I will become president at our August confer-
ence.
Senator Laxalt. Congratulations and good luck.
Mr. Miller. Thank you very much.
I had intended to read my introduction and incorporate into the
record some of the provisions and then read my position on the ex-
clusionary rule and then NDAA's position on the expansion of Fed-
eral jurisdiction into violent crime. But in view of the questions
that you have asked, perhaps you would prefer that I incorporate
my entire statement into the record, in order to give you more of
an opportunity to ask questions that are of particular concern to
you.
Senator Laxalt. We would be pleased to do that.
Mr. Miller. All right.
Then, with that in mind, let us incorporate into the record my
entire testimony which covers the supportive testimony with re-
spect to proposed reform of the exclusionary rule, bail, the insanity
defense. Federal intervention in State proceedings, sentencing, and
forfeiture.
As you may know, our position with respect to expansion of Fed-
eral jurisdiction into violent crime is reflected in the murder for
hire provision and is opposed by the National District Attorneys
Association for the reasons that I state in my testimony.
Senator Specter touched a little bit on the career criminal area,
and I am very close to that. In California we have through State
funding career criminal programs in all large district attorneys' of-
fices. In my office we have six attorneys who vertically prosecute
career criminals for robbery and for burglary, and they have been
highly successful. They do not plea bargain, they take advantage of
the new determinant sentencing law that exists in California, and
sentences are maximum for those individuals.
Senator Laxalt. For the purpose of the record, would you state
what a career criminal is under the California law?
Mr. Miller. Well, a career criminal, in short, is a person who in
effect devotes his entire career to the commission of crimes profes-
sionally. In our instance, robbery and burglary in California.
Senator Laxalt. Is there, as there was in the old days when I
was a prosecutor, a point when three felonies make you a career
criminal?
Mr. Miller. Yes. We use the criteria, a point system which is
based upon the person's past record, the nature of the offense that
he committed and the particular incident, and a number of other
291
factors that go into a profile of that type of individual. That is used
to select certain individuals who are coming into the system. By
following that criteria, those cases are shifted to the career crimi-
nal program, and instead of handling the matters horizontally,
which means from one court jurisdiction to another, superior court,
pretrial appellate, pretrial hearings and so on, where different at-
torneys touch upon the same case, in the area of career criminal,
there is absolute total concentration on each case carried all the
way through by that individual prosecutor.
Senator Laxalt. How is that handled, on a countywide basis?
Mr. Miller. Countj^wide basis. In California we have 12 separate
district attorneys' offices of larger size who have those kinds of
units. We were the first career criminal program on the west coast.
We started under LEAA back in 1975, our program was used as a
model, and LEAA was gracious enough to give our office an award
as having the leading career criminal program in the country.
Senator Specter. Mr. Miller, would you agree— if I may, Mr.
Chairman— with the ball park figure of about 200,000 career crimi-
nals in the country?
Mr. Miller. You know, I cannot give you the statistics, but lis-
tening to your approach to this thing, I would like to give you some
ideas at least.
Senator Specter. I would be interested to know what your sense
is. It is a hard fiqure to come up with.
When I was district attorney in Philadelphia, we put the figure
of 2,500 with some substantial experience. When Senator Laxalt
and I were discussing the matter many weeks ago, and he asked
me for a national focus, I came up with a figure of 200,000. I dis-
cussed it with people, and it seems to be a reasonable figure. If you
project the number of crimes that career criminals commit, there
are lots of studies on this, they go into thousands a year.
Mr. Miller. We have studies by the Rand Corp., as you well
know, indicating all sorts of statistics, both in numbers, both in at-
titudes by the prisoners after they are incarcerated, what the pris-
oner philosophy is with respect to rehabilitation. There are studies
that you gentlemen should really read that have to do with the
whole subject of career criminals.
Senator Specter. Unfortunately, I have read them.
Mr. Miller. Have you?
Senator Specter. Yes. It is disquieting nighttime reading.
Senator Laxalt. May I ask a question while we are on this
before it slips my mind?
You have been into this in San Diego County since 1975?
Mr. Miller. 1975, yes.
Senator Laxalt. What has that done to your overall crime rate?
Mr. Miller. The crime rate, and that is the point I want to
make, in California — in California the crime rate is down consider-
ably, is down substantially.
Senator Laxalt. In relation to other States?
Mr. Miller. In relation to other States.
Senator Laxalt. And your county, in relation to other counties?
Mr. Miller. No, not necessarily. But it is down comparably and
probably below most counties, yes.
292
Bear in mind that the other counties now have career criminal
programs too. But the thing that is happening, which is exceeding-
ly important, is that in 1978, the State went from indeterminate
sentencing to determinate sentencing, and since 1978, and thereaf-
ter, when sentences and the terms for punishment in California
were gradually raised in the area of violent crime, more and more
people have been sent to prison.
If my figures are correct, and I think they are, there were some
22,000 to 23,000 individuals in State prison in 1978, and there are
close to 35,000 in prison now.
Senator Laxalt. How many of those are career?
Mr. Miller. Well, there again I cannot give you the figure but it
is a considerable number. I mean we are concentrating on recidi-
vists. What I am saying, by putting the recidivist in prison, to a
greater extent it has had, in my judgment, an effect on the crime
rate. It is a tough way to go because now the State is feeling the
pinch and we are having difficulty finding space for the people who
are going to prison.
Senator Specter. California has authorized, through referendum,
bonds for prison construction?
Mr. Miller. They did authorize it by vote.
Senator Specter. Which is really surprising for a proposition 13
State.
Mr. Miller. Well, what I am saying is the public — the public was
willing to pay the price of $500 million to build some new prisons
in order to take care of the people that you are talking about.
Senator Laxalt. Was this in the 1982 authorization, the 1982
election?
Mr. Miller. The 1982 election.
Senator Laxalt. And they authorized $500 million?
Mr. Miller. $500 million.
Senator Specter. Is that one referendum or were there two?
Mr. Miller. Two. One had to do with jails
Senator Specter. That impressed me, Mr. Chairman, because I
found that California authorized the funding in a popular election,
considering their very, very heavy parsimonious attitude, the origi-
nator of proposition 13.
Senator Laxalt. Well, you have obviously made your case.
Mr. Miller. Yes. But here is another problem that has to be con-
sidered.
Under the determinate sentencing law, people sent to State
prison received a third off for good time. The pressures of the
prison population are such that the legislature made a modification
this last year, even with the increase in the sentences, that under
certain conditions, certain conditions in which the prisoner per-
formed certain functions and does work in education, whatnot, that
they would have the good time reduced from one-third to one-half.
You know, there are pressures that take place in this area that
have an effect upon the actual deterrent.
Senator Laxalt. Are those mainly economic in character?
Mr. Miller. Well, work programs and restitution efforts, things
of that sort, but my feeling is that that is a good approach, and I
am hopeful that it is going to have a lasting effect.
293
Senator Laxalt. You mean the career criminal approach provid-
ing space for their detention?
Mr. Miller. Determinate sentencing and so on, yes.
Senator Specter. I think it would be useful, Mr. Miller, to the
extent that you can, to give us judgments on quantification, that is
how many career criminals there are, how many offenses they
commit.
Mr. Miller. Sure. I would be happy to.
Senator Specter. My own judgment, after having been in the
field for a long time, is that that 200,000 is a realistic judgmental
figure; that is you project 500 crimes a year, it is on the conserv-
ative side, robberies and burglaries for career criminals — I see nod-
ding in the affirmative. If you multiply 500 by 200,000, you come to
100 million felonies. And when Senator Laxalt and I discussed it,
we tried to put it in specific enough terms so that if you are talking
to other Senators or Congressmen, that it makes sense. And the
projection that I come back to is the one which was made by the
National Commission on Criminal Justice Standards and Goals 10
years ago in 1973, when they had a projection that they believed-I
served on that Commission — that we believed that violent crime
could be reduced by 50 percent if you really did a job, and there
has been a lot of development since on the criminal development. I
would be interested in your thoughts.
Mr. Miller. I would certainly be delighted to put together all the
information. I have reams of information on this entire subject,
and I will promise you that you will get a package from me that
covers, I think, every relevant aspect of the career criminal pro-
gram. I would be happy to do so.
Senator Specter. Because to the extent that we can document its
success, we have a chance of getting people onboard to make it
happen.
Mr. Miller. Certainly. But we have statewide reports that are
issued periodically and I will forward those to you, too, which show
the performance of the various offices in the area.
Senator Laxalt. Are there any other States which could be used
as pilots?
Mr. Miller. Well, I am sure that there are. I do not want to
Senator Laxalt. We will get into that.
Mr. Miller. But one of the reasons that I mention this is because
in your crime package your sentencing is going to determinate sen-
tencing, and I think it is wise. I think that is the kind of Federal
proposal that is going to be followed by other States just as the bail
reform proposal is a model, and for those States that are unable to
make changes in their own law that have to do with the dangerous-
ness of an individual to others and to the community, gradually
the States will take guidance from the Federal Government. So
what you have here is a crime package that I think is superlative,
in general it is superlative, and I think it is something that should
be kept as a package. And I think once it is enacted into law, it
will have a tremendous effect on crime in this country. I really be-
lieve that.
Senator Specter. I want to express my regrets. I have to go but I
will study the balance of your testimony and look forward to the
materials from you.
294
Mr. Miller. Thank you. Thank you.
Senator Laxalt, there was one item that is not included in my
testimony that I would like to bring to your attention.
The National District Attorneys Association is very concerned
with the current excess distribution of legally manufactured drugs
which we believe are being used in great quantities for illegal use.
The drugs with which we are particularly concerned are Metham-
phetamine, that is Desoxyn; Phenmetrazine, which are called Pre-
ludins; Amobarbital, known as downers; Dialudid and Talvin which
are flowing in from foreign borders.
On May 1, 1983, the board of directors of the National District
Attorneys Association adopted a resolution expressing its position
on this matter, copies of which will be sent to each Member of Con-
gress.
I would like to submit that resolution to you at this time. We ask
that in your drug offenses, particularly in that section, that you
make certain that the restrictions on production quotas of these
listed drugs are tightened and not relaxed. And I have a copy of
that resolution.
Senator Laxalt. It will be ordered filed and we will certainly
give your request every serious consideration, Mr. Miller.
I have a time deadline, too, and you probably do as well. May I
ask you one question in connection with good time?
You indicated, I think, if I recall correctly, that you originally
went to 25 percent good time credit and then went to a 50-percent
level?
Mr. Miller. A third. It was one-third good time, and under cer-
tain conditions it was recently altered, or at least the opportunity
to take advantage of one-half good time was.
Senator Laxalt. We are at a 10-percent level, as you know, in
this bill. Are we unrealistic?
Mr. Miller. Now, your bill, you mean as far as good time?
Senator Laxalt. Ten percent credit good time, yes.
Mr. Miller. Well, as I understand it, under current Federal law.
Federal prisoners are eligible for parole after a third, so, I would
hope that when you go to determinate sentencing that you put it
up around two-thirds. I think that is where it belongs.
There was one other area that I wanted to bring to your atten-
tion of a technical nature that has to do with some provisions that
you have under the insanity defense. And if you will take a look at
that, my recommended changes there, I think it would be benefi-
cial to you because I see over the horizon some problems that you
are going to face, at least based on our California experience.
Senator Laxalt. Do you have those as suggestions in writing?
Mr. Miller. Yes, I have them in writing.
Senator Laxalt. Are they contained in your statement?
Mr. Miller. They are contained in my statement. There are
three separate changes recommended of a technical nature.
Senator Laxalt. All right. We will take a very close look at
those.
Mr. Miller, do you have anything else to offer to the committee?
Mr. Miller. No. The only final statement that I can make, and it
is covered in my testimony on violent crime, I think that that is
one area that the National District Attorneys Association opposes.
295
We believe that the prosecution of violent crimes should remain
with the local prosecutor. I have had the opportunity to serve as
both the U.S. attorney and as a district attorney, and I can tell you
that a lot of problems are encountered in that delicate relationship
between the Federal prosecutor and a local DA. We really do not
need that kind of intrusion into local prosecutions.
Senator Laxalt. We are sensitive to that. Certainly I speak not
only for myself but for the other members of the subcommittee.
The last thing we want to do in this package is to intrude unneces-
sarily into the State and local realm. We just do not want to do
that.
Mr. Miller. It just causes all sorts of problems.
Senator Laxalt. Well, we thank you very much and we look for-
ward to working with you. We are just getting started on this
track. It is going to be a long while.
Mr. Miller. I just want you to know that the National District
Attorneys Association, with the exception of that area, murder for
hire and violent crime, is prepared to support you in every possible
way that we can.
Senator Laxalt. That is very reassuring, to say the least, be-
cause as I indicated initially here, you are out there in the trench-
es dealing with this problem.
Mr. Miller. Well, we think the crime package is the best thing
that has come along in a long, long time.
Senator Laxalt. Thank you.
We do, too, in all objectivity. Thank you very kindly.
[The prepared statement of Mr. Miller and resolution follow:]
296
Prepared Statement of Edwin L. Miller^ Jr.
I am honored to have this opportunity to discuss with you an
enormously complex and important piece of proposed legislation,
H.R. 2151, known as the "Comprehensive Crime Control Act of 1983."
As a former United States Attorney, the first person to be
appointed to that position in the Southern District of Cali-
fornia, and as the District Attorney for San Diego County, a
position to which I was first elected in 1970, I believe I have
a thorough understanding of both our federal and state systems
of criminal justice.
Although I must confess my native California marches to the
beat of its often peculiar drummer, many of our states follow
the lead of the federal government in the implementation and
administration of the criminal law. Thus, any action the Congress
takes with respect to the administration of criminal justice at
the national level has a tremendous impact upon state and local
prosecutions and the way our state courts do business. In addi-
tion, of course, how well or poorly the federal system deals
with crime has a residual effect on us at the local level, for
not only do federal crooks also practice local crime, but we are
the communities from which they spring.
I an. addressing you today in my capacity as President-elect
of the National District Attorneys Association, the representa-
tive organ iza*. i or, of prosecutors throughout the country. It is
the position of our association that H.R. 2151 is — with one
exception -- a particularly valuable piece of proposed legisla-
tion and one which our association earnestly supports. We believe
It will restore some much-needed balance in our criminal justice
system and that it will result in a greatly heightened responsive-
ness of that system.
Our system of law attempts to strike a balance between
competing rignts. We weigh society's right to be free from the
fear and the tyranny of crime against the individual's right to
be free from unwarranted state interference, and attempt to
strike a balance. We define the legitimate role of the police.
297
We set forth those instances in which a magistrate's warrant is
required for searches or arrests. We provide regular legal mechan-
isms for the full and fair adjudication of disputes.
In our system, we also attempt to balance the interest of
the federal gc-.frnment against that of state and local govern-
ment. We provide feOtral enforcement power, federal sanctions,
in those ir. y.t onces in which individual conduct is violative of
some federal standard or right. In other words, federal law
enforcfmcnt is limited to those areas in which the conduct
coaplainod of has a federal nexus. Prosecution of other criminal
conducr is reserved for the states.
This proposed legislation attempts to redefine the balance
in both these areas. First, it alters the balance between an
ir.Gividual ' s rights against the government and the government's
rights to protect society from crime. In that area, we in the
prosecutorial conrmuniry believe that this legislation would
actually restore balance to our criminal justice system, balance
which until now has been tipping ever farther in favor of the
accused and to the detriment of the innocent citizen seeking
protection.
Second, the bill attempts to alter the balance between state
and federal enforcement and prosecution, granting to the federal
government expanded ability to take over some criminal matters
which are wholly inappropriate for the federal government, and
to do so whenever some tenuous federal relationship can be
alleged. It has the potential to deliver unto the federal govern-
ment, then, the power to selectively take on certain cases
deemed important or newsworthy enough to merit federal attention
while leaving the state prosecutor with federal cast-offs.
It is not surprising that we who are state prosecutors are
wary of such a proposal. But for a number of other reasons as
well, we earnestly oppose the federal expansion of jurisdiction
•• extraordinarily unwise.
Mith the exception, then, of those provisions calling for an
• sp*r>«iao of the role of the federal government, the National
25-694 0-84-20
298
Districi Attorneys Association supports the Comprehensive Crime
Cont.roi Act of 19 83.
Indeed, xe do more than support it. As NDAA ' s representative,
I c-.'.gt' passage of those portions of this bill which would
sti-enq?:hen the government's position in the setting of bail and
would t?tus offer our communities a greater measure of protec-
tion; would subst am ial ly raodify the defense of insanity so as
to properly place the burdtn upon tht- person asserting such
defense; wouJd ando much of thi- damage done by the courts in t he
application cf the Exclusionary Rule; would reform sentencing
procedure an 3 the administration of our laws concerning illicit
drugs and narcotics.
I now would like to discuss briefly a few of the major provi-
sions of this pending legislation, indicating why NDAA offers
such strong support.
GOOD Fa:TH exception to the EXCLUSIONAPY RL!LE
Perhaps the most highly publicized and widely supported
section of the bill is the Exclusionary Rule Limitation Act. The
National District Attorneys Association joins the President and
an impressive list of criminal justice scholars, legislators,
judges and citizens across the nation in tendering the strongest
possible support for this Act.
As you know, our newspapers are filled on a daily basis with
s:ories of how one criminal defendant or other escaped conviction
due to a "technicality." Most often, that "technicality" is the
Exclusionary Rule.
In general, our citizens don't understand the Exclusionary
Rule. Most don't even know such a thing exists. They do know,
however, that in too many cases the murder weapon or the seized
narcotics or the confession is kept from the jury and justice is
thus thwarted. They know it, and they resent it. They resent it
-because they expect, thty demand, a criminal justice system
which 'set'ks out the truth and punishes -known Jawbreakers, rather
299
thar. CI tystem in which truth bfcomc-s but a rtst stop on the
headJong i ac- Toward procedural purity.
Our citizf.-.s are concerm-d that our criminal courts have
demanded not basic fairness, not procedural regularity, but proce-
dural perfection and that anything short of perfection, no matter
how close to perfect It might be, is by definition "error" and
reason enough to suppress evidence -- often, the most probative
evidence .
Tl.is act would curt part of that problem, while still provi-
ding protection for the legitimate rights of our citizens to be
free of unreasonable' police conduct.
Under this act, good faith mistakes made by Jaw enforcement
officers in the collection of criminal evidence would no longer
automatically result in the suppression of that evidence.
That IS to say, evidence of a crime could not be excluded
from trial due to a minor search and seizure violation, as long-
_as the officer who seized the evidence acted under the reason-
able and good faith belief that his action was lawful.
Currently the Exclusionary Rule visits upon our law enforce-
ment officers, our courts and our communities a nightmare of
confusion and conflicting decisions.
The Exclusionary Rule was born of a noble intent. Certainly
It was not intended to create chaos. It was intended to hold
police behavior in check by taking away the incentive for
officers to engage in court -defined "illegal" conduct violative
of court -recogni zed or court -created rights. The scope of the
rule has now expanded beyond its legitimate purpose.
In order for the Rule to have any beneficial effect, two
elements must be present. First, there must be certainty as to
the standard of acceptable police behavior. In order to teach an
officer that unacceptable behavior will produce no usable
evidence, the officer must first know at what point behavior
becomes unacceptable. Today, he simply does not know that because
the courts keep retroactively redefining acceptable police
conduct and so the "lesson" for the police officer is wholly lost.
300
Second, there must be some reasonable proximity in time
beth-een the officer's conduct and the court ruling on the pro-
priety of that conduct. Again, that element is missing in our
system. An officer makes a search incident to an arrest today
and it will not be for perhaps five years on a trip through the
appellate courts that today's perfectly proper conduct will be
pronounced unacceptable, "illegal," by a court in its after-
acquired wisdom.
Today's chaos comes because the Exclusionary Rule does not
deter police misbehavior because it does not punish police mis-
behavior. Instead, it punishes police lack of prescience, police
inability to anticipate years in advance how future courts are
going to rule on search and seizure issues. No one quarrels with
deterring misconduct, but we should not punish the officer who,
in good faith, tries to enforce the law to the best of his
abil 1 t y .
Today's system has become so unsure, has become so unable to
offer guidance to the officer that we are not infrequently
confronted with a magistrate who issues a search warrant, only
to have second thoughts and suppress the evidence properly seized
under his own warrant.
Today, if an honest, well trained and experienced police
officer who earnestly wants to follow the law goes to see an
-honest, well trained and experienced deputy district attorney
who earnest iy wants to follow the law and together they prepare
an affidavit and warrant and take them to an honest, well
trained and experienced magistrate who earnestly wants to follow
the ]aw, and the magistrate then carefully Seviews the affidavit
and the warrant, all these folks have about a 75% chance of
doing everything right.
That means that even under the very worst scenario from the
crook's standpoint, he's got at least a 25% chance going in that
the evidence gathered against him is going to be suppressed.
I submit to you that such a system makes no sense and it's
time to do something about it. This bill would do it.
301
In considering imposition of limits upon application of t he
Exclusionary Rule, you should, I respectfully suggest, pose five
quest ions .
f_i rst , does the Exclusionary Rule really have that much
impact on criminal trials that it is something we should concern
ourselves wii h?
Emphatically, yes. About 90% of all criminal cases in the
nation are conducted in state courts. The only major study of
these state court prosecutions, completed in 1982 by the National
Institute of Justice, has concluded that the Exclusionary Rule
has a major impact on criminal trials. In California, over a
third of all felony drug arrestees are ultimately set free
because of senrch and seizuiu issues. From 1976 to 1979, that
amounted to over 4,000 felony cases. Of those persons not prosecu-
ted, nearly half were rearrested within two years of release.
Second, would establishing a "good faith exception" to the
Exclusionary Rule weaken its deterrence upon police misconduct?
The answer to this question is just as emphatic and it is no.
First of all, to believe that the Exclusionary Rule effec-
tively deters police misconduct is to believe in the tooth fairy.
It is a simple illusion, for the rule does not punish the
officer for misconduct, it punish(?s society by allowing a
criminal to go free.
As we discussed, the Exclusionary Rule has not resulted in
any certainty of standard by which an officer can gauge his
conduct .
In the past four years alone, the United States Supreme
Court nas changed its opinion by split decision, no less than
foi;r times as to exactly what parts of a car or its contents an
officer may search without a warrant. Clearly, our courts are
raking a valiant effort to define the limits of the Fourth
A.-.vr.dr •..••nt . Such judicial backing and filling, however, provides
i:-:'i\.- meaningful guidance to police officers, for while the
-^■iq'.-s think great thoughts and write rough drafts of new Fourth
A.r.-,T d.T v-m pronouncements, the officer has to decide whether he
302
car. dc a pat-down for weapons on this Hell's Angel he's just
found in a dark alley.
One- of the more pernicious aspects of the Exclusionary Rule
in Its present form, is that it protects only the criminal and
does not hing for the innocent citizen who is wrongly stopped or
searched by police. It is an ignoble judicial rule which gives
100% of us benefits -- in every case, at every time, with no
exceptior;s -- t-o criminals, at the expense of honest citizens.
Let us suppose for a moment that an officer mistakenly
enters an innocent citizen's home. Let us suppose, further, that
the officer's conduct, while technically improper, was both
reasonable and nade in good faith. What benefit comes to the
innocent citizen from the Exclusionary Rule? None.
The invading officer found no drugs, no guns, no dead bodies
inside the innocent man's house. The innocent man is not prosecu-
ted for any offense, for the good and sufficient reason that
he has committed no crime. There is, therefore, no evidence
to suppress and no trial at which to suppress it.
So our wronged citizen turns for relief to the civil courts.
If the officer did act reasonably and in good faith, and if
he can so demonstrate, the citizen does not collect a penny.
There is, you see, a good faith exception in civil law which
bars such recovery.
I submit to you that the situation is incongruous. The
innocent victim is denied recovery because the officer acted
reasonably in good faith, while a similarly aggrieved criminal
defendant enjoys full immunity from his crime because criminal
lav. lacks a siT.ilar good faith doctrine.
I submit to you that this bill evens the score: it limits
the criminal's "recovery" to that available to the innocent
victim in civil court and does not allow the criminal to receive
more protection than does the honest citizen.
The third question you must ask. m consideration of this
matter is whether the good faith exception could be used to
excuse serious Fourth Amendiient violations by the simple assertion
303
by thi' officer that he was acting in good faith.
The answer hero, again, is no.
Under this bill, the officer's conduct is measured by the
objective- standard of reasonableness, and clear or serious viola-
tions of a right of privacy, are by their very nature, not reason-
able.
"Good faith" is a recognized legal standard that can be
measured objectively, it is not a simple incantation to be
invoked for th 
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